WASHINGTON, D.C. 20549
FORM 8-K/A
CURRENT REPORT
Pursuant to Section 13 or 15(d) of
the Securities Exchange Act of 1934
Date of report (Date of earliest event reported): March 26, 1997
Morgan Stanley Capital I Inc.
(Exact Name of Registrant as Specified in Charter)
Delaware 033-46723 13-3291626
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(State or Other Jurisdiction (Commission Filer Number) (IRS Employer
of Incorporation) Identification No.)
1585 Broadway, 37th Floor, New York, New York 10036
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(Address of Registrant's Executive Offices) (Zip Code)
Registrant's telephone number, including area code: (212) 761-4000
The Exhibit Index is located on page 7 of this Form 8-K.
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EXPLANATORY NOTE: This amendment to Current Report on Form 8-K is filed to amend
and restate in their entirety the exhibits to the Current Report on Form 8-K
filed by the registrant on April 10, 1997.
ITEM 1. CHANGES IN CONTROL OF REGISTRANT.
Not applicable.
ITEM 2. ACQUISITION OR DISPOSITION OF ASSETS
On March 26, 1997, a single series of certificates, entitled Morgan Stanley
Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series 1997-C1
(the "Certificates"), was issued pursuant to a pooling and servicing agreement
dated as of March 1, 1997 (the "Pooling and Servicing Agreement"), attached
hereto as Exhibit 4.2, among Morgan Stanley Capital I Inc. (the "Depositor") as
depositor, GMAC Commercial Mortgage Corporation ("GMACCM") as master servicer
and as special servicer, LaSalle National Bank as trustee and ABN AMRO Bank N.V.
as fiscal agent. The Certificates consist of seventeen classes identified as the
"Class A-1A Certificates", the "Class A-1B Certificates", the "Class A-1C
Certificates", the "Class A-2 Certificates", the "Class IO-1 Certificates", the
Class "IO-2 Certificates", the "Class B Certificates", the "Class C
Certificates", the "Class D Certificates", the "Class E Certificates", the
"Class F Certificates", the "Class G Certificates", the "Class H Certificates",
the "Class J Certificates", the "Class R-I Certificates", the "Class R-II
Certificates" and the "Class R-III Certificates", respectively, and were issued
in exchange for, and evidence the entire beneficial ownership interest in, the
assets of a trust fund (the "Trust Fund") consiststing primarily of a segregated
pool (the "Mortgage Pool") of 160 conventional, fixed and adjustable rate,
multifamily and commercial mortgage loans (the "Mortgage Loans") having, as of
the close of business on March 1, 1997 (the "Cut-off Date"), an aggregate
principal balance of $640,657,923, after taking into account all payments of
principal due on the Mortgage Loans on or before such date, whether or not
received.
The Depositor acquired certain of the Trust Fund assets from Morgan Stanley
Mortgage Capital Inc.("MSMC") pursuant to a mortgage loan purchase agreement
dated as of March 20, 1997, attached hereto as Exhibit 99.1A, between MSMC as
seller and the Depositor as purchaser. The Depositor acquired certain of the
Trust Fund assets from ContiTrade Services L.L.C. ("ContiTrade") pursuant to a
mortgage loan purchase agreement dated as of March 20, 1997, attached hereto as
Exhibit 99.1B, between ContiTrade as seller and the Depositor as purchaser. The
Depositor acquired certain of the Trust Fund assets from GMACCM pursuant to a
mortgage loan purchase agreement dated as of March 20, 1997, attached hereto as
Exhibit 99.1C, between GMACCM as seller and the Depositor as purchaser. Certain
of the obligations of ContiTrade under the mortgage loan purchase agreement to
which it is a party were guaranteed by ContiFinancial Corporation
("ContiFinancial") pursuant to a guaranty agreement dated as of March 20, 1997,
attached hereto as Exhibit 99.1D, from ContiFinancial in favor of the Depositor
and certain others, and the Depositor assigned certain of its rights under such
guaranty agreement to the Trustee for the benefit of Certificateholders pursuant
to the Pooling and Servicing Agreement. The Depositor sold the Class A-1A, Class
A-1B, Class A-1C, Class A-2, Class IO-1, Class IO-2, Class B, Class C, Class D
and Class E Certificates to Morgan Stanley & Co. Incorporated ("Morgan Stanley")
pursuant to an underwriting agreement dated as of March 20, 1997, attached
hereto as Exhibit 1.2, between Morgan Stanley as underwriter and the Depositor.
The Depositor sold the Class F, Class G, Class H, Class J, Class R-I, Class R-II
and Class R-III Certificates to Morgan Stanley pursuant
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to a certificate purchase agreement dated as of March 20, 1997 between Morgan
Stanley as purchaser and the Depositor.
The Class A-1A Certificates have an initial Certificate Balance of
$61,700,000. The Class A-1B Certificates have an initial Certificate Balance of
$193,000,000. The Class A-1C Certificates have an initial Certificate Balance of
$139,496,000. The Class A-2 Certificates have an initial Certificate Balance of
$38,248,484. The Class IO-1 Certificates have an initial Effective Class
Notional Amount of $601,807,030. The Class IO-2 Certificates have an initial
Notional Amount of $38,248,484. The Class B Certificates have an initial
Certificate Balance of $51,252,000. The Class C Certificates have an initial
Certificate Balance of $38,439,000. The Class D Certificates have an initial
Certificate Balance of $35,236,000. The Class E Certificates have an initial
Certificate Balance of $6,406,000. Capitalized terms used and not otherwise
defined herein shall have the meanings assigned to them in the Pooling and
Servicing Agreement.
ITEM 3. BANKRUPTCY OR RECEIVERSHIP
Not applicable.
ITEM 4. CHANGES IN REGISTRANT'S CERTIFYING ACCOUNTANT
Not applicable.
ITEM 5. OTHER EVENTS
Not applicable.
ITEM 6. RESIGNATION OF REGISTRANT'S DIRECTORS
Not applicable.
ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION AN EXHIBITS
(a) Financial Statements of Business Acquired
Not applicable.
(b) Pro Forma Financial Information
Not applicable.
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(c) Exhibits.
Exhibit No.
of Item 601 of
Exhibit No. Regulation 5-K Description
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1.2 1 Underwriting Agreement dated as of
March 20, 1997 between Morgan Stanley
& Co. Incorporated as underwrtier and
Morgan Stanley Capital I Inc.
4.2 4 Pooling and Servicing Agreement
dated as of March 1, 1997 among
Morgan Stanley Capital I Inc. as
depositor, GMAC Commercial
Mortgage Corporation as master
servicer and as special servicer,
LaSalle National Bank as trustee and
ABN AMRO Bank N.V. as fiscal
agent.
99.1A 99 Mortgage Loan Purchase Agreement
dated as of March 20, 1997 between
Morgan Stanley Mortgage Capital Inc.
as seller and Morgan Stanley Capital I
Inc. as purchaser.
99.1B 99 Mortgage Loan Purchase Agreement
dated as of March 20, 1997 between
ContiTrade Services L.L.C. as seller
and Morgan Stanley Capital I Inc. as
purchaser.
99.1C 99 Mortgage Loan Purchase Agreement
dated as of March 20, 1997 between
GMAC Commercial Mortgage
Corporation as seller and Morgan
Stanley Capital I Inc. as purchaser.
99.1D 99 Guaranty Agreement dated as of
March 20, 1997 from ContiFinancial
Corporation in favor of Morgan
Stanley Capital I Inc and certain
others.
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ITEM 8. CHANGE IN FISCAL YEAR
Not applicable.
ITEM 9. SALE OF EQUITY SECURITIES PURSUANT TO REGULATIONS
Not applicable.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
MORGAN STANLEY CAPITAL I INC.
Dated: April 30, 1997 By:/s/ David R. Warren
--------------------------------
Name: David R. Warren
Title: President
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EXHIBIT INDEX
Exhibit No.
of Item 601 of
Exhibit No. Regulation 5-K Description Page
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1.2 1 Underwriting Agreement dated as of *
March 20, 1997 between Morgan
Stanley & Co. Incorporated as
underwrtier and Morgan Stanley
Capital I Inc.
4.2 4 Pooling and Servicing Agreement **
dated as of March 1, 1997 among
Morgan Stanley Capital I Inc. as
depositor, GMAC Commercial
Mortgage Corporation as master
servicer and as special servicer,
LaSalle National Bank as trustee
and ABN AMRO Bank N.V. as
fiscal agent.
99.1A 99 Mortgage Loan Purchase **
Agreement dated as of March 20,
1997 between Morgan Stanley
Mortgage Capital Inc. as seller
and Morgan Stanley Capital I Inc.
as purchaser.
99.1B 99 Mortgage Loan Purchase **
Agreement dated as of March 20,
1997 between ContiTrade
Services L.L.C. as seller and
Morgan Stanley Capital I Inc. as
purchaser.
99.1C 99 Mortgage Loan Purchase **
Agreement dated as of March 20,
1997 between GMAC Commercial
Mortgage Corporation as seller
and Morgan Stanley Capital I Inc.
as purchaser.
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99.1D 99 Guaranty Agreement dated as of **
March 20, 1997 from ContiFinancial
Corporation in favor of Morgan Stanley
Capital I Inc and certain others.
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Exhibit 1.2
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MORGAN STANLEY CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1997-C1
UNDERWRITING AGREEMENT
as of March 20, 1997
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10020
Ladies and Gentlemen:
Morgan Stanley Capital I Inc., a Delaware corporation (the "Depositor"),
proposes to sell to Morgan Stanley & Co. Incorporated (the "Underwriter") the
Commercial Mortgage Pass- Through Certificates identified in Schedule I hereto
(the "Certificates") pursuant to this Underwriting Agreement, dated as of March
20, 1997 (this "Agreement"), between the Depositor and the Underwriter. The
Certificates will evidence beneficial ownership interests in a trust fund (the
"Trust Fund") to be formed by the Depositor and consisting primarily of a pool
(the "Mortgage Pool") of multifamily and commercial mortgage loans (the
"Mortgage Loans").
Certain Mortgage Loans (the "GMACCM Mortgage Loans") will be acquired by
the Depositor from GMAC Commercial Mortgage Corporation ("GMACCM") pursuant to
the mortgage loan purchase agreement, dated as of March 20, 1997 (the "GMACCM
Purchase Agreement"), between the Depositor and GMACCM. Certain other Mortgage
Loans (the "ContiTrade Mortgage Loans") will be acquired by the Depositor from
ContiTrade Services L.L.C. ("ContiTrade") pursuant to the mortgage loan purchase
agreement, dated as of March 20, 1997 (the "ContiTrade Purchase Agreement"),
between the Depositor and ContiTrade. The remaining Mortgage Loans (the "Morgan
Stanley Mortgage Loans") will be acquired by the Depositor from Morgan Stanley
Mortgage Capital Inc. ("Morgan") pursuant to the mortgage loan purchase
agreement, dated as of March 20, 1997 (the "Morgan Purchase Agreement"), between
the Depositor and Morgan. GMACCM, ContiTrade and Morgan collectively constitute
the "Mortgage Loan Sellers"; and the GMACCM Purchase Agreement, the ContiTrade
Purchase Agreement and the Morgan Purchase Agreement collectively constitute the
"Purchase Agreements". Capitalized terms not otherwise defined herein shall have
the meanings set forth in the Purchase Agreements.
The Depositor has filed with the Securities and Exchange Commission (the
"Commission") a registration statement (No. 033-46723) on Form S-3 for the
registration of the Certificates under the Securities Act of 1933, as amended
(the "1933 Act"), which registration statement has become effective and copies
of which have heretofore been delivered to the Underwriter. The Depositor
proposes to file with the Commission pursuant to Rule 424(b)
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under the 1933 Act a supplement to the form of prospectus included in such
registration statement relating to the Certificates and the plan of distribution
thereof. Such registration statement, including the exhibits thereto, as amended
at the date hereof, is hereinafter called the "Registration Statement"; the
prospectus included in the Registration Statement, at the time the Registration
Statement, as amended, became effective, or as subsequently filed with the
Commission pursuant to Rule 424(b) under the 1933 Act, is hereinafter called the
"Basic Prospectus"; such form of supplement to the form of prospectus relating
to the Certificates, in the form in which it shall be first filed with the
Commission pursuant to Rule 424 (including the Basic Prospectus as so
supplemented) is hereinafter called the "Prospectus Supplement"; and the Basic
Prospectus and the Prospectus Supplement, together, are hereinafter called the
"Prospectus". Any preliminary form of the Prospectus that has heretofore been
filed pursuant to Rule 424(b) is hereinafter called a "Preliminary Prospectus".
SECTION 1. Representations and Warranties.
(a) The Depositor represents and warrants to the Underwriter as follows:
(i) The Registration Statement has become effective, and the
Registration Statement as of the effective date thereof (the "Effective
Date"), and the Prospectus, as of the date of the Prospectus Supplement,
complied in all material respects with the applicable requirements of the
1933 Act and the rules and regulations thereunder (the "1933 Act
Regulations"); and the information in the Registration Statement, as of the
Effective Date, did not contain any untrue statement of a material fact and
did not omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading and the information
in the Prospectus, as of the date of the Prospectus Supplement, did not,
and as of the Closing Date (as hereinafter defined) will not, contain an
untrue statement of a material fact and did not and will not omit to state
a material fact necessary in order to make the information therein, in the
light of the circumstances under which they were made, not misleading,
provided, however, that the Depositor makes no representations, warranties
or agreements as to (A) the information contained in the Prospectus or any
revision or amendment thereof or supplement thereto in reliance upon and in
conformity with information furnished in writing to the Depositor by the
Underwriter specifically for use in connection with the preparation of the
Prospectus or any revision or amendment thereof or supplement thereto (the
"Underwriter Information"), or (B) any information contained in or omitted
from any Computational Materials or ABS Term Sheets (each as hereinafter
defined) required to be provided by the Underwriter to the Depositor
pursuant to Section 4, and provided, further, that the Depositor makes no
representations or warranties as to (X) any information contained in or
omitted from the portions of the Prospectus Supplement under the headings
"Summary--The Mortgage Pool", "Risk Factors--The Mortgage Loans" and
"Description of the Mortgage Pool" or contained in or omitted from Appendix
I and Appendix II to the Prospectus Supplement (the "Mortgage Loan Seller
Information"), (Y) any information contained in or omitted from the
portions of the Prospectus Supplement under the headings "Servicing of the
Mortgage Loans--GMAC Commercial Mortgage Corporation", or (Z) the accuracy
or completeness of any information contained in the Master Tape, and
provided, further, that the Depositor makes no representations or
warranties regarding untrue statements or omissions in the
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portions of the Prospectus Supplement under the headings "Yield
Considerations" and "Maturity Considerations" that arise out of or are
based upon untrue statements or omissions in the Mortgage Loan Seller
Information and/or the Master Tape. The "Master Tape" shall mean the
compilation of information and data regarding the Mortgage Loans covered by
the Agreed Upon Procedures Letter dated March 20, 1997 and rendered by
Deloitte & Touche, L.L.P. (a "hard copy" of which Master Tape was
initialled on behalf of the Depositor and each of the Mortgage Loan
Sellers).
(ii) The Depositor has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the State of Delaware
with corporate power and authority to own, lease and operate its properties
and to conduct its business as now conducted by it, and to enter into and
perform its obligations under this Agreement and the Pooling and Servicing
Agreement (the "Pooling and Servicing Agreement"), dated as of March 1,
1997, among the Depositor, GMACCM as master servicer and as special
servicer, LaSalle National Bank as trustee and ABN Ambro Bank N.V. as
fiscal agent.
(iii) The Depositor is not in violation of its charter and by-laws or
in default in the performance or observance of any material obligation,
agreement, covenant or condition contained in any contract, indenture,
mortgage, loan agreement, note, lease or other instrument to which the
Depositor is a party or by which it may be bound, or to which any of the
property or assets of the Depositor is subject. The execution, delivery and
performance of this Agreement and the Pooling and Servicing Agreement and
the consummation of the transactions contemplated herein and therein and
compliance by the Depositor with its obligations hereunder and thereunder
have been duly authorized by all necessary corporate action and will not
conflict with or constitute a breach of or default under, or result in the
creation or imposition of any lien, charge or encumbrance upon any property
or assets of the Depositor pursuant to, any contract, indenture, mortgage,
loan agreement, note, lease or other instrument to which the Depositor is a
party or by which it may be bound or to which any of the property or assets
of the Depositor is subject.
(iv) The Certificates have been duly authorized for issuance and sale
(or will have been so authorized prior to the issuance thereof) pursuant to
this Agreement and the Pooling and Servicing Agreement. When issued,
authenticated and delivered pursuant to the provisions of this Agreement
and of the Pooling and Servicing Agreement against payment of the
consideration therefor in accordance with this Agreement, the Certificates
will be duly and validly issued and outstanding and entitled to the
benefits provided by the Pooling and Servicing Agreement, except as
enforcement thereof may be limited by bankruptcy, insolvency or other laws
relating to or affecting enforcement of creditors' rights or by general
equity principles. The Certificates and the Pooling and Servicing Agreement
conform in all material respects to all statements relating thereto
contained in the Prospectus.
(v) No authorization, approval or consent of any court or governmental
authority or agency is necessary in connection with the offering, issuance
or sale of the Certificates hereunder, except such as have been, or as of
the Closing Date will have
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been, obtained or such as may otherwise be required under applicable state
securities laws in connection with the purchase and offer and sale of the
Certificates by the Underwriter and any recordation of the respective
assignments of the Mortgage Loans to the Trustee pursuant to the Pooling
and Servicing Agreement that have not yet been completed.
(vi) This Agreement has been, and as of the Closing Date the Pooling
and Servicing Agreement will be, duly authorized, executed and delivered by
the Depositor. This Agreement constitutes, and as of the Closing Date the
Pooling and Servicing Agreement will constitute, a legal, valid and binding
agreement enforceable against the Depositor in accordance with its terms,
except as such enforceability may be limited by (A) bankruptcy, insolvency,
reorganization, receivership, moratorium or other similar laws affecting
the enforcement of the rights of creditors generally, (B) general
principles of equity, whether enforcement is sought in a proceeding in
equity or at law, and (C) public policy considerations underlying the
securities laws, to the extent that such public policy considerations limit
the enforceability of the provisions of this Agreement that purport or are
construed to provide indemnification from securities law liabilities.
(vii) At the time of the execution and delivery of the Pooling and
Servicing Agreement, the Depositor (A) will convey to the Trustee, or cause
to be conveyed to the Trustee, good title to the Mortgage Loans being
transferred to the Trustee pursuant to the Pooling and Servicing Agreement,
free and clear of any lien, mortgage, pledge, charge, encumbrance, adverse
claim or other security interest (collectively "Liens") granted by or
imposed upon the Depositor, (B) will not have assigned to any person any of
its right, title or interest in such Mortgage Loans or in the Pooling and
Servicing Agreement or the Certificates, and (C) will have the power and
authority to transfer such Mortgage Loans to the Trustee and to sell the
Certificates to the Underwriter. Upon execution and delivery of the Pooling
and Servicing Agreement by the Trustee, the Trustee will have acquired
ownership of all of the Depositor's right, title and interest in and to the
Mortgage Loans except to the extent disclosed in the Prospectus, and upon
delivery to the Underwriter of the Certificates pursuant hereto, the
Underwriter will have good title to the Certificates purchased by the
Underwriter, in each case free of Liens.
(viii) The Depositor is not, and the issuance and sale of the
Certificates in the manner contemplated by the Prospectus will not cause
the Depositor or the Trust Fund to be, subject to registration or
regulation as an "investment company" under the Investment Company Act of
1940, as amended (the "1940 Act").
(ix) Under generally accepted accounting principles ("GAAP") and for
federal income tax purposes, the Depositor will report the transfer of the
Mortgage Loans to the Trustee in exchange for the Certificates and the sale
of the Certificates to the Underwriter pursuant to this Agreement as a sale
of the interest in the Mortgage Loans evidenced by the Certificates. The
consideration received by the Depositor upon the sale of the Certificates
to the Underwriter will constitute reasonably equivalent value and fair
consideration for the Certificates. The Depositor will be solvent at all
relevant times prior to, and will not be rendered insolvent by, the sale of
the Certificates to the
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Underwriter. The Depositor is not selling the Certificates to the
Underwriter with any intent to hinder, delay or defraud any of the
creditors of the Depositor.
(x) At the Closing Date, the respective classes of Certificates shall
have been assigned ratings no lower than those set forth in Schedule I
hereto by the nationally recognized statistical rating organizations
identified in Schedule I hereto (the "Rating Agencies").
(xi) Any taxes, fees and other governmental charges in connection with
the execution, delivery and issuance of this Agreement, the Pooling and
Servicing Agreement and the Certificates payable by the Depositor (other
than income taxes) have been paid or will be paid at or prior to the
Closing Date.
(b) The Underwriter represents and warrants to the Depositor that, as of
the date hereof and as of the Closing Date, the Underwriter has complied with
all of its obligations hereunder.
SECTION 2. Purchase and Sale.
Subject to the terms and conditions herein set forth and in reliance upon
the representations and warranties herein contained, the Depositor shall sell to
the Underwriter, and the Underwriter shall purchase from the Depositor, at the
related purchase price set forth on Schedule I hereto, Certificates of each
class thereof having an actual or notional amount as set forth on Schedule I
hereto. There will be added to the purchase price of the Certificates an amount
equal to interest accrued thereon pursuant to the terms thereof from the Cut-off
Date to but excluding the Closing Date.
SECTION 3. Delivery and Payment.
Payment of the aggregate purchase price for, and delivery of, the
Certificates shall be made at 10:00 a.m. New York City time on March 26, 1997,
which date and time may be postponed by agreement between the Underwriter and
the Depositor (such time and date of payment and delivery, the "Closing Date").
Payment shall be made to the Depositor in immediately available Federal funds
wired to such bank as may be designated by the Depositor, against delivery of
the Certificates. Delivery of the Certificates will be made in book-entry form
through the facilities of The Depository Trust Company ("DTC"). Each class of
Certificates will be represented by one or more definitive global Certificates
to be deposited by or on behalf of the Depositor with DTC. The Certificates will
be made available for examination by the Underwriter not later than 10:00 a.m.
New York City time on the last business day prior to the Closing Date. The
closing of the transactions contemplated hereby shall be made at the offices of
Sidley & Austin, 875 Third Avenue, New York, New York 10022, or at such other
place as shall be agreed upon by the Underwriter and the Depositor.
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SECTION 4. Offering by Underwriter.
(a) The Underwriter shall provide written information to the Depositor
expressly for use in the Preliminary Prospectus and the Prospectus (the
"Underwriter Information").
(b) It is understood that the Underwriter proposes to offer the
Certificates for sale as set forth in the Prospectus. It is further understood
that the Depositor, in reliance upon a Policy Statement 105, has not and will
not file an offering statement pursuant to Section 352-c of the General Business
Law of the State of New York with respect to the Certificates. The Underwriter
therefore agrees that sales of the Certificates made by the Underwriter in and
from the State of New York will be made only to institutional investors within
the meaning of Policy Statement 105.
(c) In connection with the offering of the Certificates, the Underwriter
may prepare and provide to prospective investors (i) computational materials
("Computational Materials") as defined in the No-Action Letter of May 20, 1994
issued by the Commission to Kidder, Peabody Acceptance Corporation I, Kidder,
Peabody & Co. Incorporated and Kidder Structured Asset Corporation, as made
applicable to other issuers and underwriters by the Commission in response to
the request of the Public Securities Association dated May 24, 1994, as well as
the PSA Letter referred to below and (ii) ABS term sheets ("ABS Term Sheets"),
each as defined in the No-Action Letter of February 17, 1995 issued by the
Commission to the Public Securities Association (the "PSA Letter"), subject to
the following conditions:
(i) All Computational Materials and ABS Term Sheets provided to
prospective investors that are required to be filed pursuant to the
No-Action Letters shall bear a legend substantially in the form attached
hereto as Exhibit A. The Depositor shall have the right to require
additional specific legends or notations to appear on any Computational
Materials or ABS Term Sheets, the right to require changes regarding the
use of terminology and the right to determine the types of information
appearing therein. Notwithstanding the foregoing, this subsection (i) will
be satisfied if all Computational Materials and ABS Term Sheets referred to
herein bear a legend in a form previously approved in writing by the
Depositor.
(ii) The Underwriter shall provide the Depositor with representative
forms of all Computational Materials and ABS Term Sheets prior to their
first use, to the extent such forms have not previously been approved by
the Depositor for use by the Underwriter. The Underwriter shall provide to
the Depositor, for filing on Form 8-K as provided in Section 5(j), copies
(in such format as required by the Depositor) of all Computational
Materials and ABS Term Sheets that are required to be filed with the
Commission pursuant to the No-Action Letters. The Underwriter may provide
copies of the foregoing in a consolidated or aggregated form including all
information required to be filed if filing in such format is permitted by
the No-Action Letters. All Computational Materials and ABS Term Sheets
described in this subsection (ii) must be provided to the Depositor not
later than 10:00 a.m. New York City time one business day before filing
thereof is required pursuant to the terms of this Agreement and in
accordance with the No-Action Letters. The Underwriter shall not provide to
any
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investor or prospective investor in the Certificates any Computational
Materials or ABS Term Sheets on or after the day on which Computational
Materials or ABS Term Sheets are required to be provided to the Depositor
pursuant to this subsection (ii) (other than copies of Computational
Materials or ABS Term Sheets previously submitted to the Depositor in
accordance with this subsection (ii) for filing pursuant to Section 5(j)),
unless such Computational Materials or ABS Term Sheets are preceded or
accompanied by the delivery of a Prospectus to such investor or prospective
investor.
(iii) All information included in the Computational Materials and ABS
Term Sheets shall be generated based on substantially the same methodology
and assumptions that are used to generate the information in the Prospectus
Supplement as set forth therein; provided that the Computational Materials
and ABS Term Sheets may include information based on alternative
methodologies or assumptions if specified therein. If any Computational
Materials or ABS Term Sheets that are required to be filed were based on
assumptions with respect to the Mortgage Pool that differ from the final
mortgage pool information reflected in the Mortgage Loan Seller Information
and the Master Tape in any material respect or on Certificate structuring
terms that were revised in any material respect prior to the printing of
the Prospectus, the Underwriter shall prepare revised Computational
Materials or ABS Term Sheets, as the case may be, based on the Mortgage
Loan Seller Information and the Master Tape and structuring assumptions
used in the Prospectus, circulate such revised Computational Materials and
ABS Term Sheets to all recipients of the preliminary versions thereof that
indicated orally to the Underwriter they would purchase all or any portion
of the Certificates, and include such revised Computational Materials and
ABS Term Sheets (marked, "as revised") in the materials delivered to the
Depositor pursuant to subsection (ii) above.
(iv) The Depositor shall not be obligated to file any Computational
Materials or ABS Term Sheets that have been determined to contain any
material error or omission, provided that, at the request of the
Underwriter, the Depositor will file Computational Materials or ABS Term
Sheets that contain a material error or omission if clearly marked
"superseded by materials dated _____" and accompanied by corrected
Computational Materials or ABS Term Sheets that are marked, "material
previously dated _________, as corrected." If, within the period during
which the Prospectus relating to the Certificates is required to be
delivered under the 1933 Act, any Computational Materials or ABS Term
Sheets are determined, in the reasonable judgment of the Depositor or the
Underwriter, to contain a material error or omission, the Underwriter shall
prepare a corrected version of such Computational Materials or ABS Term
Sheets, shall circulate such corrected Computational Materials or ABS Term
Sheets to all recipients of the prior versions thereof that either
indicated orally to the Underwriter they would purchase all or any portion
of the Certificates, or actually purchased all or any portion thereof, and
shall deliver copies of such corrected Computational Materials or ABS Term
Sheets (marked, "as corrected") to the Depositor for filing with the
Commission in a subsequent Form 8-K submission (subject to the Depositor's
obtaining an accountant's comfort letter in respect of such corrected
Computational Materials and ABS Term Sheets, which the parties acknowledge
shall be at the expense of the Mortgage Loan Sellers under each of the
Purchase Agreements between the related Mortgage Loan Seller and the
Depositor. As of the date that the
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Underwriter disseminates any Computational Materials or ABS Term Sheets,
the Underwriter shall not have any knowledge or reason to believe that such
Computational Materials or ABS Term Sheets contained any material error or
omission and will promptly notify the Depositor of any such material error
or omission of which the Underwriter becomes aware.
(v) The Underwriter shall be deemed to have represented, as of the
Closing Date, that, except for Computational Materials and ABS Term Sheets
provided to the Depositor pursuant to subsection (ii) above, the
Underwriter did not provide any prospective investors with any information
in written or electronic form in connection with the offering of the
Certificates that is required to be filed with the Commission in accordance
with the No-Action Letters, and the Underwriter shall provide the Depositor
with a certification to that effect on the Closing Date.
(vi) In the event of any delay in the delivery by the Underwriter to
the Depositor of all Computational Materials and ABS Term Sheets required
to be delivered in accordance with subsection (ii) above, or in the
delivery of the accountant's comfort letter in respect thereof pursuant to
Section 5(j), the Depositor shall have the right to delay the release of
the Prospectus to investors or to the Underwriter, to delay the Closing
Date and to take other appropriate actions in each case as necessary in
order to allow the Depositor to comply with its agreement set forth in
Section 5(j) to file the Computational Materials and ABS Term Sheets by the
time specified therein.
(d) The Underwriter further represents and warrants that, if and to the
extent it has provided any prospective investors with any Computational
Materials or ABS Terms Sheets prior to the date hereof in connection with the
offering of the Certificates, all of the conditions set forth in clause (c)
above have been satisfied with respect thereto.
SECTION 5. Covenants of the Depositor.
The Depositor covenants with the Underwriter as follows:
(a) The Depositor will give the Underwriter notice of its intention to
file or prepare (i) any amendment to the Registration Statement at any time
prior to the Closing Date or (ii) any amendment or supplement to the
Prospectus (including any revised prospectus that the Depositor proposes
for use by the Underwriter in connection with the offering of the
Certificates and that differs from the prospectus on file at the Commission
at the time the Registration Statement became effective, whether or not
such revised prospectus is required to be filed pursuant to Rule 424(b) of
the 1933 Act Regulations) at any time during the period when a prospectus
relating to the Certificates is required to be delivered under the 1933 Act
and the Depositor, will furnish the Underwriter with copies of any such
amendment or supplement a reasonable amount of time prior to such proposed
filing or use, as the case may be, and will not file any such amendment or
supplement or use any such prospectus to which the Underwriter shall
reasonably object.
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(b) The Depositor will cause the Prospectus to be transmitted to the
Commission for filing pursuant to Rule 424(b) under the 1933 Act by means
reasonably calculated to result in filing with the Commission pursuant to
said rule.
(c) The Depositor will deliver to the Underwriter a copy of the
Registration Statement as originally filed and of each amendment thereto
prior to the date hereof (including exhibits filed therewith or
incorporated by reference therein).
(d) The Depositor will furnish to the Underwriter, from time to time
during the period when a prospectus relating to the Certificates is
required to be delivered under the 1933 Act, such number of copies of the
Prospectus (as amended or supplemented) as the Underwriter may reasonably
request for the purposes contemplated by the 1933 Act or the 1934 Act or
the respective applicable rules and regulations of the Commission
thereunder.
(e) If, during the period after the first date of the public offering
of the Certificates in which a prospectus relating to the Certificates is
required to be delivered under the 1933 Act, any event shall occur as a
result of which it is necessary to amend or supplement the Prospectus in
order to make the Prospectus not misleading in the light of the
circumstances existing at the time it is delivered to a purchaser, the
Depositor will forthwith amend or supplement the Prospectus so that, as so
amended or supplemented, the Prospectus will not include an untrue
statement of a material fact or omit to state a material fact necessary in
order to make the statements therein, in the light of the circumstances
existing at the time it is delivered to a purchaser, not misleading, and
the Depositor will furnish to the Underwriter a reasonable number of copies
of such amendment or supplement.
(f) The Depositor will endeavor to arrange for the qualification of
the Certificates for sale under the applicable securities laws of such
states and other jurisdictions of the United States as the Underwriter may
reasonably designate and will maintain such qualification in effect so long
as required for the initial distribution of Certificates; provided,
however, that the Depositor shall not be obligated to qualify as a foreign
corporation in any jurisdiction in which it is not so qualified.
(g) The Depositor will use the net proceeds received by it from the
sale of the Certificates in the manner specified in the Prospectus under
"Use of Proceeds".
(h) If the transactions contemplated by this Agreement are
consummated, the Depositor will pay or cause to be paid all expenses
incident to the performance of the obligations of the Depositor under this
Agreement. Except as herein provided, the Underwriter shall be responsible
for the payment of all costs and expenses incurred by it, including,
without limitation, (i) the fees and disbursements of counsel of the
Underwriter and (ii) such additional costs arising out of any Computational
Materials and ABS Term Sheets prepared and/or distributed by the
Underwriter, in connection with the purchase and sale of the Certificates.
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(i) If, during the period after the Closing Date in which a prospectus
relating to the Certificates is required to be delivered under the 1933
Act, the Depositor receives notice that a stop order suspending the
effectiveness of the Registration Statement or preventing the offer and
sale of the Certificates is in effect, the Depositor will immediately
advise the Underwriter of the issuance of such stop order.
(j) The Depositor will file with the Commission within fifteen days of
the issuance of the Certificates a report on Form 8-K setting forth
specific information concerning the Certificates and the Mortgage Pool to
the extent that such information is not set forth in the Prospectus. The
Depositor will also file with the Commission a report on Form 8-K setting
forth all Computational Materials and ABS Term Sheets (as such terms are
defined herein) provided to the Depositor by the Underwriter and identified
by it as such within the time period allotted for such filing pursuant to
the No- Action Letters; provided, however, that prior to such filing of the
Computational Materials and ABS Term Sheets by the Depositor, the
Underwriter must comply with its obligations pursuant to Section 4 and the
Depositor must receive a letter from Deloitte & Touche LLP, certified
public accountants, satisfactory in form and substance to the Depositor, to
the effect that such accountants have performed certain specified
procedures, all of which have been agreed to by the Depositor, as a result
of which they have determined that the information included in the
Computational Materials and ABS Term Sheets (if any), provided by the
Underwriter to the Depositor for filing on Form 8-K pursuant to Section 4
and this subsection (j), and that the accountants have examined in
accordance with such agreed upon procedures, is accurate except as to such
matters that are not deemed by the Depositor to be material. The Depositor
shall file any corrected Computational Materials or ABS Term Sheets
described in Section 4(c)(iv) as soon as practicable following receipt
thereof.
SECTION 6. Conditions of Underwriter's Obligations.
The Underwriter's obligation to purchase the Certificates allocated to it
as set forth on Schedule I hereto shall be subject to the accuracy in all
material respects of the representations and warranties on the part of the
Depositor contained herein as of the date hereof and as of the Closing Date, to
the performance by the Depositor in all material respects of its obligations
hereunder and to the following conditions:
(a) No stop order suspending the effectiveness of the Registration
Statement shall be in effect, and no proceedings for that purpose shall be
pending or, to the Depositor's knowledge, threatened by the Commission and
the Prospectus Supplement shall have been filed or transmitted for filing
by means reasonably calculated to result in a filing with the Commission
pursuant to Rule 424(b) under the Act.
(b) On the Closing Date, the Underwriter shall have received:
(i) One or more opinions, dated the Closing Date, of counsel to
the Depositor, in form and substance satisfactory to the Underwriter,
substantially to the effect that:
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(A) The Depositor is a corporation in good standing under
the laws of the State of Delaware.
(B) The Depositor has corporate power and authority to enter
into and perform its obligations under this Agreement and the
Pooling and Servicing Agreement.
(C) Each of this Agreement and the Pooling and Servicing
Agreement has been duly authorized, executed and delivered by the
Depositor. Upon due authorization, execution and delivery by the
other parties thereto, the Pooling and Servicing Agreement will
constitute a valid, legal and binding agreement of the Depositor,
enforceable against the Depositor in accordance with its terms,
except as enforceability may be limited by (1) bankruptcy,
insolvency, liquidation, receivership, moratorium, reorganization
or other similar laws affecting the enforcement of the rights of
creditors generally, (2) general principles of equity, whether
enforcement is sought in a proceeding in equity or at law and (3)
in the case of this Agreement, public policy considerations
underlying the securities laws to the extent that the same limit
the enforceability of the provisions of this Agreement that
purport or are construed to provide indemnification with respect
to securities law violations.
(D) The Certificates, when duly and validly executed,
authenticated and delivered in accordance with the Pooling and
Servicing Agreement and paid for in accordance with this
Agreement, will be entitled to the benefits of the Pooling and
Servicing Agreement.
(E) The Registration Statement is effective under the 1933
Act and, to the best of such counsel's knowledge and information,
no stop order suspending the effectiveness of the Registration
Statement has been issued under the 1933 Act and not withdrawn,
and no proceedings for that purpose have been initiated or
threatened by the Commission.
(F) At the time it became effective, the Registration
Statement (other than any financial or statistical information
included or incorporated by reference therein, as to which no
opinion need be rendered) complied as to form in all material
respects with the requirements of the 1933 Act and the 1933 Act
Regulations.
(G) To such counsel's knowledge and information, there are
no material contracts, indentures, or other documents of the
Depositor required to be described or referred to in the
Registration Statement or to be filed as exhibits thereto other
than those described or referred to therein or filed or
incorporated by reference as exhibits thereto.
<PAGE>
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(H) The Pooling and Servicing Agreement is not required to
be qualified under the Trust Indenture Act of 1939, as amended,
and the issuance and sale of the Certificates in the manner
contemplated by the Prospectus will not cause the Depositor or
the Trust Fund to be subject to registration or regulation as an
"investment company" under the Investment Company Act of 1940, as
amended.
(I) No consent, approval, authorization, or order of any
State of New York or federal court or governmental agency or body
is required for the consummation by the Depositor of the
transactions contemplated herein, except (1) such as have been
obtained, (2) such as may be required under the blue sky laws of
any jurisdiction in connection with the purchase and sale of the
Certificates by the Underwriter, as to which no opinion need be
expressed and (3) any recordation of the assignments of the
Mortgage Loans to the Trustee pursuant to the Pooling and
Servicing Agreement that has not yet been completed.
(J) Neither the sale of the Certificates to the Underwriter
pursuant to this Agreement, nor the consummation by the Depositor
of any other of the transactions contemplated by, or the
fulfillment by the Depositor of the terms of, this Agreement or
the Pooling and Servicing Agreement, will conflict with or result
in a breach or violation of any term or provision of, or
constitute a default (or an event which with the passing of time
or notification or both, would constitute a default) under, the
certificate of incorporation or by-laws of the Depositor or, to
the knowledge of such counsel, any material indenture or other
material agreement or material instrument to which the Depositor
is a party or by which it is bound, or any State of New York or
federal statute or regulation applicable to the Depositor or, to
the knowledge of such counsel, any order of any New York or
federal court, regulatory body, administrative agency or
governmental body having jurisdiction over the Depositor.
(ii) An opinion, dated the Closing Date, of counsel to the
Underwriter, reasonably acceptable to the Underwriter.
(iii) In giving their opinions required by foregoing subsections
(i) and (ii) of this Section, counsel to the Depositor and the
Underwriter, respectively, shall in each case additionally state that
nothing has come to such counsel's attention that would lead it to
believe that the Prospectus (other than any financial statements and
supporting schedules and statistical and/or accounting information
included therein, as to which no opinion need be rendered), as of the
date thereof or as of the Closing Date, contained an untrue statement
of a material fact or omitted to state a material fact necessary to
make the statements therein, in the light of the circumstances under
which they were made, not misleading. Such statement shall be based
upon conferences and telephone conversations with representatives of
the parties hereto, the Mortgage Loan Sellers, the Master
<PAGE>
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Servicer, the Special Servicer, the Trustee and the Fiscal Agent and
such opinion may be qualified that, with limited exception, such
counsel will not have reviewed any loan documents.
Such opinion(s) may express its (their) reliance as to factual
matters on the representations and warranties made by, and on
certificates or other documents furnished by officers and/or
authorized representatives of, the parties to this Agreement and the
Pooling and Servicing Agreement and on certificates furnished by
public officials. Such opinion(s) may assume the due authorization,
execution and delivery of the instruments and documents referred to
therein by the parties thereto other than the party on behalf of which
such opinion is being rendered. Such opinion(s) may be qualified as an
opinion only on the General Corporation Law of the State of Delaware,
the laws of the State of New York and the federal law of the United
States.
(c) On the Closing Date, the Underwriter shall have received a
favorable opinion, dated the Closing Date, of special tax and ERISA counsel
to the Depositor (i) regarding the qualification of each of REMIC I, REMIC
II and REMIC III as a real estate mortgage investment conduit within the
meaning of Sections 860A through 860G of the Internal Revenue Code of 1986
and (ii) to the effect that the statements in the Basic Prospectus and the
Prospectus Supplement under the headings "Certain Federal Income Tax
Consequences" and "ERISA Considerations", to the extent that they
constitute matters of State of New York or federal law or legal conclusions
with respect thereto, while not purporting to discuss all possible
consequences of investment in the Certificates, are correct in all material
respects with respect to those consequences or matters that are discussed
therein. Such opinion(s) may express its (their) reliance as to factual
matters on the representations and warranties made by, and on certificates
or other documents furnished by officers and/or authorized representatives
of, the parties to this Agreement and the Pooling and Servicing Agreement
and on certificates furnished by public officials. Such opinion(s) may
assume the due authorization, execution and delivery of the instruments and
documents referred to therein by the parties thereto other than the party
on behalf of which such opinion is being rendered. Such opinion(s) may be
qualified as an opinion only on the General Corporation Law of the State of
Delaware, the laws of the State of New York and the federal law of the
United States.
(d) The Depositor shall have delivered to the Underwriter a
certificate, dated the Closing Date, of the President, a Senior Vice
President or a Vice President of the Depositor to the effect that the
signer of such certificate has examined, or has relied upon an examination
conducted by appropriate persons authorized by him of, this Agreement, the
Prospectus, the Pooling and Servicing Agreement and various other closing
documents, and that, to the best of his or her knowledge after reasonable
investigation:
(i) the representations and warranties of the Depositor in this
Agreement are true and correct in all material respects;
<PAGE>
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(ii) the Depositor has, in all material respects, complied with
all the agreements and satisfied all the conditions on its part to be
performed or satisfied hereunder at or prior to the Closing Date;
(iii) since March 20, 1997, there has been no material adverse
change in the financial condition of the Depositor; and
(iv) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that
purpose have been initiated or threatened by the Commission.
(e) The Depositor and the Underwriter shall have received from
Deloitte & Touche LLP, certified public accountants, a letter dated the
Closing Date, in form and substance satisfactory to the Underwriter,
stating in effect that:
(i) they have performed certain specified procedures as a result
of which they have determined that the information of an accounting,
financial or statistical nature set forth in the Prospectus Supplement
under the headings "Summary--The Mortgage Pool," "Yield
Considerations", "Maturity Considerations", "Risk Factors - The
Mortgage Loans" and "Description of the Mortgage Pool" or contained in
or omitted from Appendix I, Appendix II and Appendix III to the
Prospectus Supplement, agrees with the data sheet or computer tape
prepared by or on behalf of each Mortgage Loan Seller, unless
otherwise noted in such letter; and
(ii) they have compared the data contained in the data sheet or
computer tape referred to in the immediately preceding clause (i) to
information contained in an agreed upon sampling of the Mortgage Loan
files and in such other sources as shall be specified by them, and
found such data and information to be in agreement, unless otherwise
noted in such letter.
(f) The Underwriter shall have received the certification specified in
Section 4(c)(v) and the accountants' letters specified in Section 5(j).
(g) The Underwriter shall have received, with respect to each of the
Master Servicer, the Special Servicer, the Fiscal Agent and the Trustee, a
favorable opinion of counsel, dated the Closing Date, addressing the valid
existence of such party under the laws of the jurisdiction of its
organization, the due authorization, execution and delivery of the Pooling
and Servicing Agreement by such party and, subject to the same limitations
as set forth in Section 6(b)(i)(c), the enforceability of the Pooling and
Servicing Agreement against such party. Such opinion may express its
reliance as to factual matters on representations and warranties made by,
and on certificates or other documents furnished by officers and/or
authorized representatives of parties to, this Agreement and the Pooling
and Servicing Agreement and on certificates furnished by public officials.
Such opinion may assume the due authorization, execution and delivery of
the instruments and documents referred to therein by the parties thereto
other than the party on behalf of which such opinion is being rendered.
Such opinion may be qualified
<PAGE>
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as an opinion only on the General Corporation Law of the State of Delaware
(if relevant), the laws of each state in which the writer of the opinion is
admitted to practice law and the federal law of the United States.
(h) Subsequent to the date hereof, there shall not have occurred any
change, or any development involving a prospective change, in or affecting
the business or properties of the Depositor which the Underwriter
concludes, in the reasonable judgment of the Underwriter after consultation
with the Depositor, materially impairs the investment quality of the
Certificates so as to make it impractical or inadvisable to proceed with
the public offering or the delivery of the Certificates as contemplated by
the Prospectus.
(i) The Certificates shall have been assigned ratings no less than
those set forth on Schedule I and such ratings shall not have been
rescinded.
SECTION 7. Indemnification.
(a) The Depositor shall indemnify and hold harmless the Underwriter, its
directors and officers and each person, if any, who controls the Underwriter
within the meaning of either Section 15 of the 1933 Act or Section 20 of the
Securities Exchange Act of 1934, as amended (the "1934 Act"), from and against
any and all expenses, losses, claims, damages and other liabilities (including
without limitation the reasonable costs of investigation and legal defense) (the
"Liabilities") caused by any untrue statement or alleged untrue statement of any
material fact contained in the Prospectus or any omission or alleged omission to
state therein a material fact necessary to make the statements therein, in light
of the circumstances under which they were made, not misleading; provided that,
insofar as the Liabilities are caused by any such untrue statement or omission
or alleged untrue statement or omission with respect to any information in the
Prospectus as to which the Underwriter has agreed to indemnify the Depositor
pursuant to Section 7(b), the Depositor shall have no obligation to so indemnify
and hold harmless; and provided, further, that the Depositor shall have no
obligation to so indemnify and hold harmless to the extent that the Liabilities
arise out of or are based upon (i) an untrue statement or omission or an alleged
untrue statement or omission with respect to (A) the Mortgage Loan Seller
Information or any other factual information contained in the Prospectus
regarding the Mortgage Loans or (B) information in the Prospectus Supplement
under the heading "Servicing of the Mortgage Loans--GMAC Commercial Mortgage
Corporation" or (ii) an untrue statement or omission in the Master Tape.
(b) The Underwriter shall indemnify and hold harmless the Depositor, its
directors and each person, if any, who controls the Depositor within the meaning
of either Section 15 or Section 20 of the 1933 Act or Section 20 of the 1934 Act
against any and all Liabilities as incurred, but only with respect to (i) untrue
statements or alleged untrue statements, or omissions or alleged omissions to
state a material fact necessary to make the statements therein, in light of the
circumstances in which they were made, not misleading, in the Underwriter
Information relating to the Underwriter provided by the Underwriter to the
Depositor expressly for inclusion in the Registration Statement (or any
amendment thereto) or any Preliminary Prospectus or the Prospectus (or any
amendment or supplement thereto) and (ii) untrue statements or alleged untrue
statements in the Computational Materials or ABS Term Sheets delivered to
purchasers
<PAGE>
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of the Certificates by the Underwriter, to the extent that such Computation
Materials and ABS Terms Sheets were prepared by the Underwriter and incorporated
by reference into the Registration Statement or the Prospectus as a result of
any filing pursuant to Section 5(j), except to the extent that such losses,
claims, damages or other liabilities arise from factual errors in the Mortgage
Loan Seller Information and/or the Master Tape.
(c) Each indemnified party shall give notice as promptly as reasonably
practicable to each indemnifying party of any action commenced against it in
respect of which indemnity may be sought hereunder, but failure to so notify an
indemnifying party shall not relieve such indemnifying party from any liability
which it may have otherwise than on account of this Agreement. If any action is
brought against any indemnified party and it notifies the indemnifying party of
the commencement thereof, the indemnifying party may participate at its own
expense in the defense of any such action. To the extent that it may elect by
written notice delivered to the indemnified party promptly after receiving the
aforesaid notice from the indemnified party, the indemnifying party may elect to
assume the defense thereof, with counsel satisfactory to such indemnified party.
In any such proceeding, any indemnified party shall have the right to retain its
own counsel, but the fees and expenses of such counsel shall be at the expense
of such indemnified party unless (i) the indemnifying party and the indemnified
party shall have agreed to the retention of such counsel or (ii) the named
parties to any such proceeding (including any impleaded parties) include both
the indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them. In no event shall the indemnifying parties be
liable for fees and expenses of more than one counsel (in addition to any local
counsel) separate from their own counsel for all indemnified parties in
connection with any one action or separate but similar or related actions in the
same jurisdiction arising out of the same general allegations or circumstances.
Unless it shall assume the defense of any proceeding, an indemnifying party
shall not be liable for any settlement of any proceeding effected without its
written consent. However, if settled with such consent or if there be a final
judgment for the plaintiff, the indemnifying party shall indemnify the
indemnified party from and against any loss or liability by reason of such
settlement or judgment. If an indemnifying party assumes the defense of any
proceeding, it shall be entitled to settle such proceeding with the consent of
the indemnified party or, if such settlement provides for release of the
indemnified party in connection with all matters relating to the proceeding that
have been asserted against the indemnified party in such proceeding by the other
parties to such settlement, without the consent of the indemnified party.
(d) If the indemnification provided for in this Section 7 is due in
accordance with its terms but is for any reason held by a court to be
unavailable to an indemnified party under subsection (a) or (b) on grounds of
public policy or otherwise, then the indemnifying party, in lieu of indemnifying
such indemnified party, shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (i)
in such proportion as is appropriate to reflect the relative benefits received
by the Depositor on the one hand and the Underwriter on the other from the offer
and sale of the Certificates pursuant hereto or (ii) if the allocation provided
by clause (i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Depositor on the one hand and of the
Underwriter on the other in connection with the statements or omissions which
resulted in such losses, claims, damages
<PAGE>
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or other liabilities, as well as any other relevant equitable considerations.
The relative fault of the Depositor on the one hand and of the Underwriter on
the other shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the
Depositor or by the Underwriter, and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission.
(e) The parties hereto agree that it would not be just and equitable if
contribution were determined by pro rata allocation or by any other method of
allocation that does not take account of the considerations referred to in
subsection (d) above. The amount paid or payable by an indemnified party as a
result of the losses, claims, damages or other liabilities referred to in this
Section 7 shall be deemed to include any legal fees and disbursements or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such claim. In the event that any expenses so
paid by the indemnifying party are subsequently determined to not be required to
be borne by the indemnifying party hereunder, the party which received such
payment shall promptly refund the amount so paid to the party which made such
payment. Notwithstanding the provisions of this subsection (e), the Underwriter
shall not be required to contribute any amount in excess of the amount by which
the total price at which the Certificates purchased by the Underwriter and
distributed to the public by the Underwriter exceeds the amount of damages that
the Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The remedies provided for in this Section 7 are
not exclusive and shall not limit any rights or remedies that may otherwise be
available to any indemnified party at law or in equity.
(f) The indemnity and contribution agreements contained in this Section 7
shall remain operative and in full force and effect regardless of (i) any
termination of this Agreement, (ii) any investigation made by the Depositor, the
Underwriter, any of their respective directors or officers, or any person
controlling the Depositor or the Underwriter, and (iii) acceptance of and
payment for any of the Certificates.
SECTION 8. Representations and Warranties to Survive Delivery.
All representations and warranties of the Depositor contained in this
Agreement shall remain operative and in full force and effect, regardless of any
investigation made by or on behalf of the Underwriter or any controlling person
in respect of the Underwriter, and shall survive delivery of the Certificates to
the Underwriter.
SECTION 9. RESERVED.
SECTION 10. Termination of Agreement.
(a) The Underwriter may terminate its obligations under this Agreement, by
notice to the Depositor, at any time at or prior to the Closing Date if the sale
of the Certificates provided for herein is not consummated because of any
failure or refusal on the part of the
<PAGE>
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Depositor to comply with the terms or to fulfill any of the conditions of this
Agreement, or if for any reason the Depositor shall be unable to perform its
obligations under this Agreement.
(b) The Underwriter may terminate its obligations under this Agreement in
the absolute discretion of the Underwriter, by notice given to the Depositor, if
(A) after the execution and delivery of this Agreement and prior to the Closing
Date (i) trading generally shall have been suspended or materially limited on or
by, as the case may be, any of the New York Stock Exchange, the American Stock
Exchange, the National Association of Securities Dealers, Inc., the Chicago
Board of Options Exchange, the Chicago Mercantile Exchange or the Chicago Board
of Trade, (ii) trading of any securities of the Depositor shall have been
suspended on any exchange or in any over-the-counter market, (iii) a general
moratorium on commercial banking activities in New York shall have been declared
by either Federal or State of New York authorities, or (iv) there shall have
occurred any outbreak or escalation of hostilities or any change in financial
markets or any calamity or crisis that, in the judgment of the Underwriter, is
material and adverse and (B) in the case of any of the events specified in
clauses (A)(i) through (iv) above, such event singly or together with any other
such event, makes it, in the judgment of the Underwriter, impracticable to
market the Certificates on the terms and in the manner contemplated in the
Prospectus.
[(c) If the Underwriter terminates its obligations under this Agreement in
accordance with Section 10(a), the Depositor shall reimburse the Underwriter for
all reasonable out-of-pocket expenses (including reasonable fees and
disbursements of counsel) that shall have been reasonably incurred by the
Underwriter in connection with the proposed purchase and sale of the
Certificates.
SECTION 11. Notices.
All notices and other communications hereunder shall be in writing and
shall be deemed duly given if sent by facsimile or delivered by courier, in
either case with appropriate confirmation of receipt. Notices to the Underwriter
shall be directed to Morgan Stanley & Co. Incorporated, 1585 Broadway, New York,
New York 10036, Attention: Russell Rahbany; to the Depositor shall be directed
to Morgan Stanley Capital I Inc., 1585 Broadway, New York, New York 10036,
Attention: Russell Rahbany, with a copy to the treasurer and the general
counsel; and as to any party, to such other address as may hereafter be
furnished by such party to the others in writing.
SECTION 12. Parties.
This Agreement shall inure to the benefit of and be binding upon the
Underwriter and the Depositor and their respective successors. Nothing expressed
or mentioned in this Agreement is intended or shall be construed to give any
person or entity, other than the Underwriter and the Depositor and their
respective successors and the controlling persons and officers and directors
referred to in Sections 7 and 8 and their respective successors, heirs and legal
representatives, any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision herein contained. This Agreement and
all conditions and provisions hereof are intended to be for the sole and
exclusive benefit of the Underwriter and the Depositor and their respective
successors, and said controlling persons and officers and directors and their
<PAGE>
- 19 -
respective successors, heirs and legal representatives, and for the benefit of
no other person or entity. No purchaser of Certificates from the Underwriter
shall be deemed to be a successor by reason merely of such purchase.
SECTION 13. Governing Law.
This Agreement shall be governed by and construed in accordance with the
laws of the State of New York applicable to agreements made and to be performed
in said State.
SECTION 14. Miscellaneous.
This Agreement supersedes all prior or contemporaneous agreements and
understandings relating to the subject matter hereof. Neither this Agreement nor
any term hereof may be amended, waived, discharged or terminated except by a
writing signed by the party against whom enforcement of such amendment, waiver,
discharge or termination is sought. This Agreement may be signed in any number
of duplicate originals, each of which shall be deemed an original, which taken
together shall constitute one and the same instrument.
<PAGE>
- 20 -
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to the Depositor a counterpart hereof, whereupon this
instrument, along with all counterparts, will become a binding agreement between
the Underwriter and the Depositor in accordance with its terms.
Very truly yours,
MORGAN STANLEY CAPITAL I INC.
By: /s/ Russell Rahbany
----------------------
Name: Russell Rahbany
Title: Vice President
CONFIRMED AND ACCEPTED, as of the date first above written:
MORGAN STANLEY & CO. INCORPORATED
By: /s/ Russell Rahbany
------------------------
Name: Russell Rahbany
Title: Vice President
<PAGE>
- 21 -
SCHEDULE I
Underwriting Agreement, dated as of March 20, 1997.
Cut-off Date: March 1, 1997
As used in this Agreement, the term "Registration Statement" refers to the
registration statement No. 46723 filed by Morgan Stanley Capital, Inc. on Form
S-3 and declared effective by the Commission.
Certificates:
Morgan Stanley Capital I Inc. Commercial Mortgage Pass-Through Certificates,
Series 1997-C1, Class IO-1, Class IO-2, Class A-1A, Class A-1B, Class A-1C,
Class A-2, Class B, Class C, Class D and Class E
<TABLE>
<CAPTION>
Initial Aggregate
Principal (or, in the case Initial
Class of Class IO-1 and IO-2, Notional) Pass-Through Purchase
Designation Amount of Class (1) Rate Price(2) Rating(3)
- ----------- ------------------- ---- -------- ---------
<S> <C> <C> <C> <C>
A-1A $ 61,700,000 6.85% 100.1112% AAA/Aaa
A-1B $193,000,000 7.46% 101.5493% AAA/Aaa
A-1C $139,496,000 7.63% 101.8396% AAA/Aaa
A-2 $ 38,248,484 5.92% 99.9619% AAA/Aaa
IO-1 $601,807,030 1.42% 7.9085% AAA/Aaa
IO-2 $ 38,248,484 2.25% 5.0312% AAA/Aaa
B $ 51,252,000 7.69% 101.9637% AA-/Aa2
C $ 38,439,000 7.79% 101.9790% A-/A2
D $ 35,236,000 7.85% 101.0371% BBB-/Baa2
E $ 6,406,000 7.85% 98.7150% NR/Baa3
</TABLE>
- ----------------
(1) Subject to a variance of plus or minus 5.0%.
(2) Expressed as a percentage of the aggregate stated or notional amount, as
applicable, of the relevant class of Certificates to be purchased. The
purchase price for each class of the Certificates will include accrued
interest at the initial Pass-Through Rate therefor on the aggregate stated
or notional amount, as applicable, thereof to be purchased from the Cut-off
Date to but not including the Closing Date.
(3) By each of Duff & Phelps Credit Rating Co. and Moody's Investors Services,
Inc. ("Moody's"), except that the Class E Certificates will be rated solely
by Moody's.
Exhibit 4.2
<PAGE>
EXECUTION COPY
- --------------------------------------------------------------------------------
MORGAN STANLEY CAPITAL I INC.,
as Depositor,
and
GMAC COMMERCIAL MORTGAGE CORPORATION,
as Master Servicer and Special Servicer,
and
LASALLE NATIONAL BANK,
as Trustee,
and
ABN AMRO BANK N.V.,
as Fiscal Agent,
----------------------------------------
POOLING AND SERVICING AGREEMENT
Dated as of March 1, 1997
----------------------------------------
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
Series 1997-C1
- -------------------------------------------------------------------------------
-1-
<PAGE>
<TABLE>
<CAPTION>
Page
----
TABLE OF CONTENTS
<S> <C>
PRELIMINARY STATEMENT...................................................................... 1
ARTICLE I
DEFINITIONS
Section 1.1 Definitions.............................................................. 5
Section 1.2 Certain Calculations in Respect of the Mortgage Pool..................... 54
Section 1.3 Calculations of LIBOR.................................................... 55
Section 1.4 Interpretation........................................................... 56
ARTICLE II
DECLARATION OF TRUST;
ISSUANCES OF CERTIFICATES
Section 2.1 Conveyance of Mortgage Loans.............................................. 56
Section 2.2 Acceptance by Trustee..................................................... 58
Section 2.3 Sellers' Repurchase of Mortgage Loans for Document Defects and Breaches
of Representations and Warranties....................................... 59
Section 2.4 Representations and Warranties............................................ 61
Section 2.5 Conveyance of Interests................................................... 62
ARTICLE III
THE CERTIFICATES
Section 3.1 The Certificates.......................................................... 63
Section 3.2 Registration.............................................................. 64
Section 3.3 Transfer and Exchange of Certificates..................................... 64
Section 3.4 Mutilated, Destroyed, Lost or Stolen Certificates......................... 69
Section 3.5 Persons Deemed Owners..................................................... 70
Section 3.6 Book-Entry Certificates.................................................. 70
Section 3.7 Notices to Clearing Agency................................................ 71
Section 3.8 Definitive Certificates................................................... 71
ARTICLE IV
ADVANCES
Section 4.1 P&I Advances by Master Servicer........................................... 72
Section 4.2 Servicing Advances........................................................ 73
Section 4.3 Advances by Trustee and Fiscal Agent...................................... 74
Section 4.4 Evidence of Nonrecoverability............................................. 75
Section 4.5 Advance Interest.......................................................... 75
</TABLE>
-i-
<PAGE>
<TABLE>
<CAPTION>
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<S> <C>
Section 4.6 Fiscal Agent Termination Event............................................ 75
Section 4.7 Procedure Upon Termination Event.......................................... 76
Section 4.8 Merger or Consolidation of Fiscal Agent................................... 77
Section 4.9 Limitation on Liability of the Fiscal Agent and Others.................... 77
Section 4.10 Indemnification of Fiscal Agent........................................... 77
ARTICLE V
COLLECTION ACCOUNT; DISTRIBUTION ACCOUNT;
CERTAIN TRUSTEE REPORTS
Section 5.1 Collection Account....................................................... 78
Section 5.2 Application of Funds in the Collection Account........................... 81
Section 5.3 Distribution Account..................................................... 84
Section 5.4 Trustee Reports; Access to Information................................... 84
Section 5.5 Trustee Tax Reports...................................................... 87
ARTICLE VI
DISTRIBUTIONS
Section 6.1 Distributions Generally.................................................. 87
Section 6.2 REMIC I.................................................................. 88
Section 6.3 REMIC II................................................................. 89
Section 6.4 REMIC III................................................................ 95
Section 6.5 Allocation of Realized Losses and Expense Losses......................... 100
Section 6.6 Appraisal Reductions. ................................................... 101
Section 6.7 Compliance with Withholding Requirements................................. 102
ARTICLE VII
CONCERNING THE TRUSTEE AND THE FISCAL AGENT
Section 7.1 Duties of Trustee and the Fiscal Agent................................... 102
Section 7.2 Certain Matters Affecting the Trustee and the Fiscal Agent............... 103
Section 7.3 Trustee and Fiscal Agent Not Liable for Certificates or
Interests or Mortgage Loans............................................ 105
Section 7.4 Trustee and the Fiscal Agent May Own Certificates........................ 106
Section 7.5 Eligibility Requirements for Trustee and Fiscal Agent.................... 106
Section 7.6 Resignation and Removal of Trustee or Fiscal Agent....................... 106
Section 7.7 Successor Trustee or Fiscal Agent........................................ 108
Section 7.8 Merger or Consolidation of Trustee....................................... 109
Section 7.9 Appointment of Co-Trustee, Separate Trustee or Custodian................. 109
Section 7.10 Authenticating Agents.................................................... 111
Section 7.11 Indemnification of Trustee............................................... 111
Section 7.12 Fees and Expenses of Trustee and the Fiscal Agent........................ 112
Section 7.13 Collection of Moneys..................................................... 113
</TABLE>
-ii-
<PAGE>
<TABLE>
<CAPTION>
Page
----
<S> <C>
Section 7.14 Notification to Holders.................................................. 113
Section 7.15 Representations and Warranties of the Trustee and the Fiscal Agent....... 113
ARTICLE VIII
ADMINISTRATION AND SERVICING
OF MORTGAGE LOANS
Section 8.1 Servicing Standard; General Powers and Duties............................ 115
Section 8.2 Collection of Mortgage Loan Payments..................................... 118
Section 8.3 Collection of Taxes, Assessments and Similar Items; Servicing
Accounts and Reserve Accounts.......................................... 118
Section 8.4 Sub-Servicing Agreements................................................. 120
Section 8.5 Maintenance of Insurance Policies; Errors and Omissions and Fidelity
Coverage............................................................... 121
Section 8.6 Enforcement of Due-On-Sale Clauses; Assumption Agreements; Subordinate
Financing.............................................................. 123
Section 8.7 Realization Upon Defaulted Mortgage Loans................................ 124
Section 8.8 Trustee to Cooperate; Release of Mortgage Files.......................... 127
Section 8.9 Documents, Records and Funds in Possession of Master Servicer or Special
Servicer to be Held for the Trustee for the
Benefit of the Certificateholders...................................... 128
Section 8.10 Servicing Compensation................................................... 129
Section 8.11 Master Servicer Reports; Account Statements.............................. 131
Section 8.12 Annual Statement as to Compliance........................................ 132
Section 8.13 Annual Independent Public Accountants' Servicing Report.................. 132
Section 8.14 Certain Reports Regarding the Mortgage Loans and the Mortgaged
Properties............................................................. 133
Section 8.15 Certain Available Information and Related Rights of the Master Servicer
and the Special Servicer............................................... 133
Section 8.16 Rule 144A Information.................................................... 135
Section 8.17 Inspections; Collection of Financial Statements.......................... 136
Section 8.18 Modifications, Waivers, Amendments and Consents.......................... 137
Section 8.19 Title to REO Property.................................................... 139
Section 8.20 Management of REO Property............................................... 140
Section 8.21 Additional Obligations of the Master Servicer............................ 143
Section 8.22 Representations, Warranties and Covenants of the Master Servicer and the
Special Servicer....................................................... 144
Section 8.23 Merger or Consolidation.................................................. 145
Section 8.24 Resignation of Master Servicer........................................... 146
Section 8.25 Assignment or Delegation of Duties by Master Servicer or the Special
Servicer............................................................... 146
Section 8.26 Limitation on Liability of Master Servicer, Special Servicer and Others.. 147
Section 8.27 Indemnification; Third-Party Claims...................................... 148
Section 8.28 Tax Reporting............................................................ 149
</TABLE>
-iii-
<PAGE>
<TABLE>
<CAPTION>
Page
----
<S> <C>
Section 8.29 Certain Special Servicer Reports......................................... 150
Section 8.30 Qualification to Service................................................. 151
Section 8.31 Sale of Defaulted Mortgage Loans and REO Properties...................... 151
Section 8.32 Operating Adviser; Elections............................................. 154
Section 8.33 Duties of Operating Adviser.............................................. 154
Section 8.34 Exchange Act Reporting................................................... 155
ARTICLE IX
DEFAULT
Section 9.1 Events of Default........................................................ 156
Section 9.2 Trustee to Act; Appointment of Successor................................. 158
Section 9.3 Notification to Certificateholders....................................... 159
Section 9.4 Waiver of Events of Default.............................................. 159
ARTICLE X
PURCHASE AND
TERMINATION OF THE TRUST
Section 10.1 Termination of Trust..................................................... 160
Section 10.2 Procedure Upon Termination of Trust...................................... 161
Section 10.3 Additional Trust Termination Requirements................................ 162
ARTICLE XI
RIGHTS OF CERTIFICATEHOLDERS
Section 11.1 Limitation on Rights of Holders.......................................... 163
Section 11.2 Access to List of Holders................................................ 164
Section 11.3 Acts of Holders of Certificates.......................................... 164
ARTICLE XII
REMIC ADMINISTRATION
Section 12.1 REMIC Administration..................................................... 165
Section 12.2 Prohibited Transactions and Activities................................... 170
Section 12.3 Liability with Respect to Certain Taxes and Loss of REMIC Status......... 170
ARTICLE XIII
MISCELLANEOUS PROVISIONS
Section 13.1 Binding Nature of Agreement.............................................. 171
Section 13.2 Entire Agreement......................................................... 171
Section 13.3 Amendment................................................................ 171
Section 13.4 GOVERNING LAW............................................................ 172
</TABLE>
-iv-
<PAGE>
<TABLE>
<CAPTION>
Page
----
<S> <C>
Section 13.5 Notices.................................................................. 172
Section 13.6 Severability of Provisions............................................... 173
Section 13.7 Indulgences; No Waivers.................................................. 173
Section 13.8 Headings Not to Affect Interpretation.................................... 173
Section 13.9 Benefits of Agreement.................................................... 173
Section 13.10 Special Notices to the Rating Agencies................................... 173
Section 13.11 Counterparts............................................................. 175
Section 13.12 Intention of Parties..................................................... 175
Section 13.13 Recordation of Agreement................................................. 176
</TABLE>
-v-
<PAGE>
<TABLE>
<CAPTION>
EXHIBITS
<S> <C>
Exhibit A-1 Form of Class A-1A Certificate............................................. A-1
Exhibit A-2 Form of Class A-1B Certificate............................................. A-2
Exhibit A-3 Form of Class A-1C Certificate............................................. A-3
Exhibit A-4 Form of Class A-2 Certificate.............................................. A-4
Exhibit A-5 Form of Class B Certificate................................................ A-5
Exhibit A-6 Form of Class C Certificate................................................ A-6
Exhibit A-7 Form of Class D Certificate................................................ A-7
Exhibit A-8 Form of Class E Certificate................................................ A-8
Exhibit A-9 Form of Class F Certificate................................................ A-9
Exhibit A-10 Form of Class G Certificate................................................ A-10
Exhibit A-11 Form of Class H Certificate................................................ A-11
Exhibit A-12 Form of Class J Certificate................................................ A-12
Exhibit A-13 Form of Class R-I Certificate.............................................. A-13
Exhibit A-14 Form of Class R-II Certificate............................................. A-14
Exhibit A-15 Form of Class R-III Certificate............................................ A-15
Exhibit A-16 Form of Class IO-1 Certificate............................................. A-16
Exhibit A-17 Form of Class IO-2 Certificate............................................. A-17
Exhibit B-1 Form of Initial Certification of Trustee................................... B-1
Exhibit B-2 Form of Final Certification of Trustee..................................... B-2
Exhibit C Form of Request for Release................................................ C
Exhibit D-1 Form of Transferor Certificate for Transfers of Definitive Certificates.... D-1
Exhibit D-2A Form I of Transferee Certificate for Transfers of Definitive
Non-Registered Certificates.............................................. D-2A
Exhibit D-2B Form II of Transferee Certificate for Transfers of Definitive
Non-Registered Certificates.............................................. D-2B
Exhibit D-3A Form I of Transferee Certificate for Transfers of Book-Entry
Non-Registered Certificates.............................................. D-3A
Exhibit D-3B Form II of Transferee Certificate for Transfers of Book-Entry
Non-Registered Certificates.............................................. D-3B
Exhibit E-1A Form of Transfer Affidavit and Agreement for Transfers of Residual
Certificates............................................................. E-1A
Exhibit E-1B Form of Transferor Certificate for Transfers of Residual Certificates...... E-1B
Exhibit F-1 Form of Monthly Certificateholder Report................................... F-1
Exhibit F-2 Form of Special Servicer Monthly Report.................................... F-2
Exhibit F-3 Form of Specially Serviced Asset Report.................................... F-3
Exhibit G Operating Statement Analysis............................................... G-1
SCHEDULES
Schedule I MSMC Loan Schedule......................................................... I
Schedule II ContiTrade Loan Schedule................................................... II
Schedule III GMACCM Loan Schedule....................................................... III
</TABLE>
-vi-
<PAGE>
THIS POOLING AND SERVICING AGREEMENT is dated and effective as of March 1,
1997 (this "Agreement") among MORGAN STANLEY CAPITAL I INC., as depositor (the
"Depositor"), GMAC COMMERCIAL MORTGAGE CORPORATION, as master servicer (in such
capacity, the "Master Servicer") and as special servicer (in such capacity, the
"Special Servicer"), LASALLE NATIONAL BANK, as trustee (the "Trustee") of the
trust created hereby (the "Trust"), and ABN AMRO BANK N.V., as fiscal agent
(only in its capacity as a party required to make Advances pursuant to Article
IV hereof) (the "Fiscal Agent").
PRELIMINARY STATEMENT
On the Closing Date, the Depositor will acquire certain Mortgage Loans from
GMAC Commercial Mortgage Corporation, as seller ("GMACCM" and, in such capacity,
a "Seller"), certain other Mortgage Loans from ContiTrade Services L.L.C.
("ContiTrade" and also a "Seller"), and the remaining Mortgage Loans from Morgan
Stanley Mortgage Capital Inc. ("MSMC" and also a "Seller"); and, as of such
date, the Depositor will be the owner of the Mortgage Loans and the other
property being conveyed by it to the Trustee for inclusion in the Trust. On the
Closing Date, the Depositor will acquire (i) the REMIC I Regular Interests and
the Class R-I Certificates as consideration for its transfer to the Trust of the
Mortgage Loans and the other property constituting the Trust; (ii) the REMIC II
Regular Interests and the Class R-II Certificates as consideration for its
transfer of the REMIC I Regular Interests to the Trust; and (iii) the REMIC III
Certificates as consideration for its transfer of the REMIC II Regular Interests
to the Trust. The Depositor has duly authorized the execution and delivery of
this Agreement to provide for the foregoing and the issuance of (a) the REMIC I
Regular Interests and the Class R-I Certificates representing in the aggregate
the entire beneficial ownership of REMIC I, (b) the REMIC II Regular Interests
and the Class R-II Certificates representing in the aggregate the entire
beneficial ownership of REMIC II and (c) the REMIC III Certificates representing
in the aggregate the entire beneficial ownership of REMIC III. All covenants and
agreements made by the Depositor and the Trustee herein with respect to the
Mortgage Loans and the other property constituting the Trust are for the benefit
of the Holders of the Certificates. The parties hereto are entering into this
Agreement, and the Trustee is accepting the trusts created hereby, for good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged.
<PAGE>
REMIC I
As provided herein, the Trustee will make an election for the segregated
pool of assets described in Section 12.1 hereof consisting of the Mortgage Loans
and certain related assets to be treated for federal income tax purposes as a
real estate mortgage investment conduit (a "REMIC" and, such particular
segregated pool of assets, "REMIC I"). The REMIC I Regular Interests will be
designated as the "regular interests" in REMIC I and the Class R-I Certificates
will be designated as the sole class of "residual interests" in REMIC I.
A separate uncertificated REMIC I Regular Interest will be issued with
respect to each Mortgage Loan. Each REMIC I Regular Interest will have: (i) a
remittance rate (a "REMIC I Remittance Rate") equal to, in the case of a Fixed
Rate Mortgage Loan, the Net Mortgage Rate of the related Mortgage Loan in effect
as of the Closing Date and, in the case of an Adjustable Rate Mortgage Loan, the
Net Mortgage Rate in effect from time to time in accordance with the terms of
the related Mortgage Note as of the Closing Date; (ii) a principal amount (an
"Uncertificated Principal Balance") equal to the Stated Principal Balance of the
related Mortgage Loan outstanding from time to time; and (iii), solely for
purposes of satisfying Treasury regulation Section 1.860G- 1(a)(4)(iii), a
latest possible maturity date set to the first Distribution Date that follows
the Stated Maturity Date of the related Mortgage Loan. The Class R-I
Certificates will constitute the sole class of residual interests in REMIC I for
purposes of the REMIC Provisions and will have no principal balances and no
remittance rate, but will be entitled to receive on each Distribution Date any
portion of the Available Distribution Amount for such Distribution Date not
otherwise deemed distributed on the REMIC I Regular Interests.
REMIC II
As provided herein, the Trustee will make an election for the segregated
pool of assets described in Section 12.1 hereof consisting of the REMIC I
Regular Interests to be treated for federal income tax purposes as a REMIC (such
particular pool of assets "REMIC II"). The REMIC II Regular Interests will be
designated as the "regular interests" in REMIC II and the Class R-II
Certificates will be designated as the sole class of "residual interests" in
REMIC II for purposes of the REMIC Provisions.
Fifteen separate uncertificated REMIC II Regular Interests will be issued.
The following table irrevocably sets forth the designation, remittance rate (the
"REMIC II Remittance Rate") and initial Uncertificated Principal Balance for
each REMIC II Regular Interest. Solely for purposes of satisfying Treasury
regulation Section 1.860G-1(a)(4)(iii), the latest possible maturity date of
each REMIC II Regular Interest shall be the first Distribution Date that follows
the Stated Maturity Date for the Mortgage Loan that has, as of the Closing Date,
the latest Stated Maturity Date. The Class R-II Certificates will have no
principal balances and no remittance rate, but will be entitled to receive on
each Distribution Date any portion of the REMIC II Distribution Amount for such
Distribution Date not otherwise deemed distributed on the REMIC II Regular
Interests.
-2-
<PAGE>
REMIC II Regular Interests
Designation REMIC II Initial Uncertificated
- ----------- Remittance Rate Principal Balance
--------------- -----------------
IO-2 Variable (1) N/A (2)
LG1 Variable (1) $X(3)
LG2 Variable (1) $Y(4)
A-1A 6.85% per annum $61,700.00
A-1B 7.46% per annum $193,000.00
A-1C 7.63% per annum $139,496.00
A-2 Variable (1) $38,248.48
B 7.69% per annum $51,252.00
C 7.79% per annum $38,439.00
D 7.85% per annum $35,236.00
E 7.85% per annum $6,406.00
F 6.85% per annum $19,220.00
G 6.85% per annum $11,211.00
H 6.85% per annum $20,821.00
J 6.85% per annum $25,628.44
- -------------
(1) Calculated in accordance with the definition of "REMIC II Remittance Rate".
(2) REMIC II Regular Interest IO-2 does not have an Uncertificated Principal
Balance and will accrue interest on a notional principal amount (an
"Uncertificated Notional Amount") that is equal to the aggregate Stated
Principal Balance of the Group 2 Loans outstanding from time to time.
(3) The initial Uncertificated Principal Balance of REMIC II Regular Interest
LG1 is equal to 99.9% of the Initial Loan Group 1 Balance (as defined herein).
(4) The initial Uncertificated Principal Balance of REMIC II Regular Interest
LG2 is equal to 99.9% of the Initial Loan Group 2 Balance (as defined herein).
REMIC III
As provided herein, the Trustee will make an election for the segregated
pool of assets described in Section 12.1 hereof consisting of the REMIC II
Regular Interests to be treated for federal income tax purposes as a REMIC (such
particular pool of assets "REMIC III"). The REMIC III Regular Certificates will
be designated as the "regular interests" in REMIC III and the Class R-III
Certificates will be designated as the sole class of "residual interests" in
REMIC III for purposes of the REMIC Provisions.
Fourteen separate Classes of REMIC III Regular Certificates will be issued.
The
-3-
<PAGE>
following table irrevocably sets forth the designation, the pass-through rate
(the "Pass-Through Rate") and the initial aggregate principal balance (the
"Class Principal Balance") for each Class of REMIC III Regular Certificates.
Solely for purposes of satisfying Treasury regulation Section 1.860G-1
(a)(4)(iii), the latest possible maturity date of each Class of REMIC III
Regular Certificates shall be the first Distribution Date that follows the
Stated Maturity Date for the Mortgage Loan that has, as of the Closing Date, the
latest Stated Maturity Date. The Class R-III Certificates will have no principal
balances and no pass-through rate, but will be entitled to receive on each
Distribution Date any portion of the REMIC III Distribution Amount for such
Distribution Date not otherwise deemed distributed on the REMIC III Regular
Interests.
REMIC III Regular Certificates
Pass-Through
Designation Rate Initial Class Principal Balance
- ------------ ---------------------- -------------------------------
Class IO-1 Variable (1) N/A (3)
Class IO-2 N/A (2) N/A (2)
Class A-1A 6.85% per annum $61,700,000.00
Class A-1B 7.46% per annum $193,000,000.00
Class A-1C 7.63% per annum $139,496,000.00
Class A-2 Variable (1) $38,248,484.00
Class B 7.69% per annum $51,252,000.00
Class C 7.79% per annum $38,439,000.00
Class D 7.85% per annum $35,236,000.00
Class E 7.85% per annum $6,406,000.00
Class F 6.85% per annum $19,220,000.00
Class G 6.85% per annum $11,211,000.00
Class H 6.85% per annum $20,821,000.00
Class J 6.85% per annum $25,628,439.00
- ------------
(1) Calculated in accordance with the definition of "Pass-Through Rate",
(2) The Class IO-2 Certificates do not have a Class Principal Balance or a
Pass-Through Rate. Such Certificates shall be entitled to 100% of the
Uncertificated Accrued Interest in respect of REMIC II Regular Interest
IO-2, subject to such adjustments as are contemplated by the definition of
"Distributable Certificate Interest".
(3) The Class IO-1 Certificates do not have a Class Principal Balance and will
accrue interest on an aggregate notional principal amount (a "Class
Notional Amount") that is equal to the aggregate of the Uncertificated
Principal Balances of REMIC II Regular Interests LG1 and LG2 outstanding
from time to time.
-4-
<PAGE>
ARTICLE I
DEFINITIONS
Section 1.1 Definitions. Whenever used in this Agreement, including without
limitation in the Preliminary Statement, the following words and phrases, unless
the context otherwise requires, shall have the following meanings:
"Accountant" means a person engaged in the practice of accounting who is
Independent and is a member of the American Institute of Certified Public
Accountants.
"Accrued Certificate Interest" means: (i) with respect to each Class of
REMIC III Regular Certificates (other than the Class IO-2 Certificates) for any
Distribution Date, interest for the related Interest Accrual Period accrued at
the applicable Pass-Through Rate on the Class Principal Balance or Class
Notional Amount, as the case may be, of such Class of Certificates outstanding
immediately prior to such Distribution Date; and (ii) with respect to the Class
IO-2 Certificates for any Distribution Date, 100% of the Uncertificated Accrued
Interest in respect of REMIC II Regular Interest IO-2 for such Distribution
Date. The Accrued Certificate Interest in respect of each Class of REMIC III
Regular Certificates (other than the Class A-2 Certificates) for each
Distribution Date shall accrue on the basis of a 360-day year consisting of
twelve 30-day months, and the Accrued Certificate Interest in respect of the
Class A-2 Certificates for each Distribution Date shall accrue on the basis of a
360-day year and the actual number of days elapsed during the applicable
Interest Accrual Period. Solely as a matter of clarification, the Accrued
Certificate Interest in respect of the Class IO-1 Certificates for any
Distribution Date could alternatively be calculated using the applicable
Effective Pass-Through Rate and the Effective Class Notional Amount of such
Certificates immediately prior to such Distribution Date.
"Acquisition Date" means the date upon which, under the Code (and in
particular the REMIC Provisions and Section 856(e) of the Code), the Trust or a
REMIC Pool is deemed to have acquired an REO Property.
"Additional Master Servicing Compensation" has the meaning set forth in
Section 8.10(a).
"Additional Special Servicing Compensation" has the meaning set forth in
Section 8.10(b).
"Additional Trust Expense" means any of the following items: (a) Special
Servicing Fees, Liquidation Fees and Workout Fees; (b) Advance Interest; (c)
amounts paid by the Trust to indemnify the Master Servicer, the Special
Servicer, the Trustee, the Fiscal Agent or any other Person pursuant to the
terms of this Agreement; (d) the items described in clauses (ix) and (xiii) of
Section 5.2(b); (e) to the extent not covered by indemnification by one of the
parties hereto or paid by a source other than the Trust, any federal, state or
local taxes imposed on the Trust or any of its assets or transactions; and (f)
to the extent not included in the calculation of a Realized Loss and not covered
by indemnification by one of the parties hereto or otherwise, any other
unanticipated cost, liability or expense of the Trust which the Trust has not
recovered, and
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in the judgment of the Master Servicer (or, in the case of a Specially Serviced
Mortgage Loan, the Special Servicer) will not recover, from the related
Mortgagor or Mortgaged Property or otherwise.
"Additional Warranting Parties" means, together, Heller Financial, Inc. and
General American Life Insurance Company.
"Additional Warranty Agreement" means, with respect to either Additional
Warranting Party, the agreement between such Additional Warranting Party and
MSMC pursuant to which MSMC acquired, and such Additional Warranting Party made
certain representations and warranties regarding, certain of the MSMC Loans.
"Adjustable Rate Mortgage Loan" means a Mortgage Loan as to which the
related Mortgage Note provides, as of the Closing Date, for periodic adjustments
to the Mortgage Rate thereon based on changes in the related Index.
"Advance" means either a P&I Advance or a Servicing Advance.
"Advance Interest" means interest payable pursuant to Section 4.5 to the
Master Servicer, the Special Servicer, the Trustee or the Fiscal Agent on
outstanding Advances made by any such Person out of its own funds.
"Advance Rate" means a per annum rate equal to the Prime Rate as published
in the "Money Rates" section of The Wall Street Journal from time to time or
such other publication as determined by the Trustee in its reasonable
discretion.
"Adverse REMIC Event" means, with respect to any REMIC Pool, (i) the
endangerment of the status of such REMIC Pool as a REMIC or (ii) except as
permitted by Section 8.20(a), the imposition of a tax upon the income of such
REMIC Pool or any of its assets or transactions (including without limitation
the tax on prohibited transactions as defined in Code Section 860F(a)(2) or the
tax on prohibited contributions set forth in Section 860G(d) of the Code).
"Affiliate" means, 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.
"Aggregate Principal Distribution Amount" means, with respect to any
Distribution Date, the aggregate of the Principal Distribution Amounts for both
Loan Groups for such Distribution Date.
"Aggregate Stated Principal Balance" means, at the time of any
determination and as the context may require, the aggregate of the Stated
Principal Balances for all Mortgage
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Loans (including without limitation REO Mortgage Loans).
"Agreement" means this Pooling and Servicing Agreement and all amendments
and supplements hereto.
"Annual Report" means the report, if any, to be provided by the Master
Servicer to the Trustee pursuant to Section 8.14(b).
"Appraisal" means an appraisal by a Qualified Appraiser that is conducted
in accordance with USPAP.
"Appraisal Event" means, with respect to any Mortgage Loan (including
without limitation an REO Mortgage Loan), the earliest of (i) the date 120 days
after the occurrence of any delinquency in payment with respect to such Mortgage
Loan if such delinquency remains uncured, (ii) the date 90 days after the
related Mortgagor files a bankruptcy petition or a receiver is appointed in
respect of the related Mortgaged Property, provided such petition or appointment
is still in effect, (iii) the effective date of any modification to a Money Term
of a Mortgage Loan, other than the extension of the date that a Balloon Payment
is due for a period of less than six months, and (iv) the date 30 days following
the date the related Mortgaged Property becomes an REO Property.
"Appraisal Reduction" means, with respect to any Required Appraisal Loan
with respect to which an Appraisal or internal valuation is performed pursuant
to Section 6.8(a), an amount, calculated as of the first Determination Date that
is at least fifteen days after the date on which the report in respect of the
most recent such Appraisal or internal valuation, as the case may be, is
obtained, equal to the excess, if any, of (a) the sum of (i) the Stated
Principal Balance of such Required Appraisal Loan, (ii) to the extent not
previously advanced, all unpaid interest on such Mortgage Loan at a per annum
rate equal to the Mortgage Rate, (iii) all unreimbursed Advances and interest on
Advances at the Advance Rate with respect to such Mortgage Loan, and (iv) to the
extent funds on deposit in any applicable Servicing Accounts are not sufficient
therefor, all currently due and unpaid real estate taxes and assessments,
insurance premiums and, if applicable, ground rents in respect of the related
Mortgaged Property or REO Property, as the case may be, over (b) 90% of the
Appraised Value (net of any prior mortgage liens) of the related Mortgaged
Property or REO Property as determined by such Appraisal or internal valuation,
as the case may be; provided that, if an internal valuation of the Mortgaged
Property is performed, the Appraisal Reduction will (unless and until an
Appraisal, if any, is performed) equal the greater of (x) the amount calculated
above and (y) 25% of the Stated Principal Balance of the Required Appraisal
Loan. Each Appraisal or internal valuation for a Required Appraisal Loan shall
be updated annually. The Appraisal Reduction for each Required Appraisal Loan
will be recalculated based on subsequent Appraisals, internal valuations or
updates. Each Appraisal Reduction will be reduced to zero as of the date the
related Mortgage Loan is brought current under the then current terms of the
Mortgage Loan for at least three consecutive months, paid in full, liquidated,
repurchased or otherwise disposed of.
"Appraised Value" means, with respect to any Mortgaged Property or REO
Property, the appraised value thereof determined by an Appraisal of such
property or, in the case
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of an internal valuation performed pursuant to Section 6.6(a), the value of such
property determined by such internal valuation.
"Assignment of Leases" means, with respect to any Mortgage Loan, any
assignment of leases, rents and profits or equivalent instrument, whether
contained in the related Mortgage or executed separately, assigning to the
holder or holders of such Mortgage all of the related Mortgagor's interest in
the leases, rents and profits derived from the ownership, operation, leasing or
disposition of all or a portion of the related Mortgaged Property as security
for repayment of such Mortgage Loan.
"Assignment of Mortgage" means an assignment of the Mortgage, notice of
transfer or equivalent instrument, in recordable form, sufficient under the laws
of the jurisdiction wherein the related Mortgaged Property is located to reflect
the transfer of the Mortgage to the Trustee, which assignment, notice of
transfer or equivalent instrument may be in the form of one or more blanket
assignments covering the Mortgage Loans secured by Mortgaged Properties located
in the same jurisdiction, if permitted by law.
"Assumed Monthly Payment" means: (a) with respect to any Balloon Mortgage
Loan (other than a Balloon Mortgage Loan that has become an REO Mortgage Loan)
for its Stated Maturity Date (provided that such Mortgage Loan has not been paid
in full, and no other Liquidation Event has occurred in respect thereof, on or
before the end of the Collection Period in which such Stated Maturity Date
occurs) and for any subsequent Due Date therefor as of which such Mortgage Loan
remains outstanding and part of the Trust Fund, if no Monthly Payment (other
than the related delinquent Balloon Payment) is due for such Due Date, the
scheduled monthly payment of principal and/or interest deemed to be due in
respect thereof for such Due Date equal to the Monthly Payment (other than any
related delinquent Balloon Payment) that would have been due in respect of such
Mortgage Loan on such Due Date if it had been required to continue to accrue
interest in accordance with its terms, and to pay principal in accordance with
the amortization schedule (if any), in effect immediately prior to, and without
regard to the occurrence of, its most recent scheduled Maturity Date; and (b)
with respect to any REO Mortgage Loan, for any Due Date therefor as of which the
related REO Property remains part of the Trust Fund, the scheduled monthly
payment of principal and/or interest deemed to be due in respect thereof on such
Due Date equal to the Monthly Payment (or, in the case of a Balloon Mortgage
Loan described in clause (a) of this definition, the Assumed Monthly Payment)
that was due in respect of the subject Mortgage Loan for the last Due Date prior
to its becoming an REO Mortgage Loan.
"Authenticating Agent" means any authenticating agent appointed by the
Trustee pursuant to Section 7.10.
"Authorized Officer" means any Person that may execute an Officer's
Certificate on behalf of the Depositor.
"Available Distribution Amount" means, with respect to any Distribution
Date, an amount equal to the aggregate of (a) all amounts on deposit in the
Distribution Account as of the commencement of business on such Distribution
Date that represent payments and other
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collections on or in respect of the Mortgage Loans and any REO Properties that
were received by the Master Servicer or the Special Servicer through the end of
the related Collection Period (exclusive of any such amounts that were deposited
in the Distribution Account in error, that constitute Master Servicing Fees
payable to the Trustee in respect of unpaid Trustee Fees or that constitute
Prepayment Premiums) and (b) if and to the extent not already among the amounts
described in clause (a), (i) the aggregate amount of any P&I Advances made by
the Master Servicer, the Trustee or the Fiscal Agent for such Distribution Date
pursuant to Section 4.1 and/or Section 4.3, and (ii) the aggregate of any
Compensating Interest Payments made by the Master Servicer for such Distribution
Date pursuant to Sections 8.21(c) and 8.21(d).
"Balloon Mortgage Loan" means (i) any Mortgage Loan that by its original
terms or by virtue of any modification entered into as of the Closing Date
provides for an amortization schedule extending beyond its Maturity Date or (ii)
any Callable Mortgage Loan.
"Balloon Payment" means, with respect to any Balloon Mortgage Loan as of
any date of determination, the Monthly Payment payable on the Maturity Date of
such Mortgage Loan.
"Balloon Payment Interest Excess" means, with respect to any Balloon
Mortgage Loan as to which the Stated Maturity Date or Call Date occurs after the
first day of, but on or before the Determination Date in, any calendar month,
the amount of interest (net of related Master Servicing Fees) accrued on such
Mortgage Loan from the beginning of such month to, but not including, such
Stated Maturity Date or Call Date, to the extent such interest is actually paid
by the related Mortgagor in connection with the payment of the related Balloon
Payment during the Collection Period in which such Stated Maturity Date occurs.
"Balloon Payment Interest Shortfall" means, with respect to any Balloon
Mortgage Loan as to which the Stated Maturity Date or Call Date occurs after the
Determination Date in any calendar month, the amount of interest that would have
accrued on such Mortgage Loan at the related Net Mortgage Rate from such Stated
Maturity Date or Call Date through the end of such calendar month, to the extent
not paid by the related Mortgagor.
"Bankruptcy Code" means, the federal bankruptcy code, as amended from time
to time (Title 11 of the United States Code).
"Benefit Plan Opinion" means an Opinion of Counsel satisfactory to the
Trustee to the effect that any proposed transfer will not (i) cause the assets
of the Trust to be regarded as plan assets for purposes of the Plan Asset
Regulations or (ii) give rise to any fiduciary duty on the part of the
Depositor, the Master Servicer, the Special Servicer, the Trustee or the Fiscal
Agent.
"Book-Entry Certificates" means certificates evidencing a beneficial
interest in a Class of Certificates, ownership and transfer of which shall be
made through book entries as described in Section 3.6; provided, that after the
occurrence of a condition whereupon book-entry registration and transfer are no
longer authorized and Definitive Certificates are to be issued to the
Certificate Owners, such certificates shall no longer be "Book-Entry
Certificates."
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"Breach" has the meaning set forth in Section 2.3(a).
"Business Day" means any day other than (i) a Saturday or a Sunday, (ii) a
legal holiday in New York, New York or in any of the principal cities in which
the Trustee, the Master Servicer or the Special Servicer conducts trust or
servicing operations with respect to this Agreement, or (iii) a day on which
banking institutions or savings associations in New York, New York or in any of
the principal cities in which the Trustee, the Master Servicer or the Special
Servicer conducts trust or servicing operations with respect to this Agreement,
are authorized or obligated by law or executive order to be closed.
"Call Date" means the first date as of which any Callable Mortgage Loan can
be required to be paid in full under the related Call Option.
"Call Option" means, with respect to any Mortgage Loan, any provision
thereunder that permits the related Mortgagee, at its option, to require the
related Mortgagor to pay such Mortgage Loan in full prior to the applicable
Stated Maturity Date, notwithstanding that no default has occurred under such
Mortgage Loan.
"Callable Mortgage Loan" means any Mortgage Loan that, as of the Closing
Date, contains a Call Option.
"Cash Liquidation" means, as to any defaulted Mortgage Loan other than an
REO Mortgage Loan, the receipt of all related Insurance Proceeds, Condemnation
Proceeds, Liquidation Proceeds and other payments or recoveries in connection
with a Final Recovery Determination.
"CERCLA" shall mean the Comprehensive Environmental Response, Compensation
and Liability Act of 1980, as amended (42 U.S.C. ss. 9601, et seq.).
"Certificates" means the Depositor's Series 1997-C1 Commercial Mortgage
Pass-Through Certificates issued hereunder.
"Certificate Factor" means, with respect to any Class of REMIC III Regular
Certificates, as of any date of determination, a fraction, expressed as a
decimal carried to eight places, the numerator of which is the then related
Class Principal Balance or Class Notional Amount (or, in the case of the Class
IO-1 Certificates, the Effective Class Notional Amount), as the case may be, and
the denominator of which is the related initial Class Principal Balance or
initial Class Notional Amount (or, in the case of the Class IO-1 Certificates,
the initial Effective Class Notional Amount), as the case may be, as of the
Closing Date.
"Certificate Notional Amount" means, with respect to any Interest Only
Certificate, as of any date of determination, the then notional principal amount
on which such Certificate accrues interest equal to the product of (a) the
Percentage Interest evidenced by such Certificate, multiplied by (b) the then
Class Notional Amount of the Class of Interest Only Certificates to which such
Certificate belongs.
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"Certificate Owner" means, with respect to a Book-Entry Certificate, the
Person who is the beneficial owner of such Certificate as reflected on the books
of the Clearing Agency or on the books of a Person maintaining an account with
the Clearing Agency directly or as an indirect participant, in accordance with
the rules of the Clearing Agency.
"Certificate Principal Balance" means, with respect to any Principal
Balance Certificate, as of any date of determination, the then outstanding
principal amount of such Certificate equal to the product of (a) the Percentage
Interest evidenced by such Certificate, multiplied by (b) the then Class
Principal Balance of the Class of Certificates to which such Certificate
belongs.
"Certificate Register" has the meaning provided in Section 3.2.
"Certificate Registrar" means the registrar appointed pursuant to Section
3.2.
"Certificateholder" has the same meaning as "Holder."
"Class" means, collectively, all of the Certificates bearing the same
alphabetical and, if applicable, numerical class designation.
"Class A-1A Certificates," "Class A-1B Certificates,""Class A-1C
Certificates,""Class A-2 Certificates," "Class IO-1 Certificates," "Class IO-2
Certificates," "Class B Certificates," "Class C Certificates," "Class D
Certificates," "Class E Certificates," "Class F Certificates," "Class G
Certificates," "Class H Certificates,", "Class J Certificates", "Class R-I
Certificates," "Class R-II Certificates" and "Class R-III Certificates" mean the
Certificates designated as "Class A-1A," "Class A-1B," "Class A-1C," "Class
A-2," "Class IO-1," "Class IO-2", "Class B," "Class C," "Class D," "Class E,"
"Class F," "Class G," "Class H," "Class J," "Class R-I," "Class R-II" and "Class
R-III," respectively, on the faces thereof, in substantially the forms attached
hereto as Exhibits A-1 through A-17 hereof.
"Class A Certificates" means the Class A-1A Certificates, Class A-1B
Certificates, Class A-1C Certificates and Class A-2 Certificates, collectively.
"Class A-2 Cross-Over Date" means the first Distribution Date, if any, on
which either (i) a distribution of principal from the Principal Distribution
Amount for Loan Group 1 for such Distribution Date is made to the Holders of the
Class A-2 Certificates pursuant to subclause (ii)(A) of the first paragraph of
Section 6.4(a) or (ii) a reduction is made in the Uncertificated Principal
Balance of REMIC II Regular Interest LG2 pursuant to the first paragraph of
Section 6.5(b).
"Class Interest Shortfall" means, with respect to any Class of REMIC III
Regular Certificates and any Distribution Date (except the initial Distribution
Date, with respect to which the Class Interest Shortfall for each such Class
will equal zero), the sum of (a) the excess, if any, of (i) all Distributable
Certificate Interest in respect of such Class of Certificates for the
immediately preceding Distribution Date, over (ii) all distributions of
Distributable Certificate Interest made with respect to such Class of
Certificates on the immediately preceding Distribution
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Date pursuant to Section 6.4, and (b), to the extent permitted by applicable
law, other than in the case of the Interest Only Certificates, interest for the
related Interest Accrual Period accrued at the applicable Pass-Through Rate on
the amount of any such excess described in the immediately preceding clause (a).
With respect to any Class of REMIC III Regular Certificates (other than the
Interest Only Certificates), the interest referred to in clause (b) of the
preceding sentence shall accrue on the basis of a 360-day year consisting of
twelve 30-day months (or, in the case of the Class A-2 Certificates, on the
basis of a 360-day year and the actual number of days elapsed in the applicable
Interest Accrual Period).
"Class IO Certificates" means the Class IO-1 Certificates and the Class
IO-2 Certificates, collectively.
"Class IO-1 Share" means: (1) when used to describe a portion of the
Uncertificated Accrued Interest in respect of either REMIC II Regular Interest
LG1 or REMIC II Regular Interest LG2 for any Distribution Date, that portion
thereof equal to one month's interest (calculated on the basis of a 360-day year
consisting of twelve 30-day months) on the Uncertificated Principal Balance of
such REMIC II Regular Interest immediately prior to such Distribution Date at a
per annum rate equal to, in the case of each Distribution Date, what will be the
Pass-Through Rate for the Class IO-1 Certificates for such Distribution Date;
and (2) when used to describe a portion of the Uncertificated Distributable
Interest in respect of either REMIC II Regular Interest LG1 or REMIC II Regular
Interest LG2 for any Distribution Date, that portion thereof equal to: (a) the
Class IO-1 Share of the Uncertificated Accrued Interest in respect of such REMIC
II Regular Interest for such Distribution Date; reduced (to not less than zero)
by (b) the product of the Net Aggregate Prepayment Interest Shortfall, if any,
for such Distribution Date, multiplied by a fraction, the numerator of which
will equal the Class IO-1 Share of the Uncertificated Accrued Interest in
respect of such REMIC II Regular Interest for such Distribution Date, and the
denominator of which will equal the aggregate Uncertificated Accrued Interest in
respect of all the REMIC II Regular Interests for such Distribution Date; and
increased by (c), in the case of any Distribution Date subsequent to the initial
Distribution Date, the excess, if any, of (i) the Class IO-1 Share of the
Uncertificated Distributable Interest in respect of such REMIC II Regular
Interest for the prior Distribution Date, over (ii) 1,000 times the aggregate
distributions of interest made in respect of such REMIC II Regular Interest on
the prior Distribution Date pursuant to clause (i) of the first paragraph of
Section 6.3.
"Class Notional Amount" means the aggregate notional principal amount on
which any Class of Interest Only Certificates accrues interest from time to time
which, as of any date of determination, is equal to: (i) in the case of the
Class IO-1 Certificates, the then aggregate of the Uncertificated Principal
Balances of REMIC II Regular Interest LG1 and REMIC II Regular Interest LG2; and
(ii) in the case of the Class IO-2 Certificates, the then Uncertificated
Notional Amount of REMIC II Regular Interest IO-2.
"Class Principal Balance" means the aggregate principal amount of any Class
of Principal Balance Certificates outstanding as of any date of determination.
On each Distribution Date, the Class Principal Balance of each Class of the
Principal Balance Certificates shall be reduced by the amount of any
distributions of principal made thereon on such Distribution Date pursuant to
Section 6.4 and, if and to the extent appropriate, shall be further reduced on
such
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Distribution Date as provided in Section 6.5.
"Clearing Agency" shall mean an organization registered as a "clearing
agency" pursuant to Section 17A of the 1934 Act, which initially shall be the
Depository.
"Closing Date" means March 26, 1997.
"Code" means the Internal Revenue Code of 1986, as amended, any successor
statutes thereto, and applicable U.S. Department of Treasury regulations issued
pursuant thereto in temporary or final form and proposed regulations thereunder,
to the extent that, by reason of their proposed effective date, such proposed
regulations would apply to the Trust.
"Collection Account" has the meaning set forth in Section 5.1(a).
"Collection Period" means, with respect to any Distribution Date, the
period beginning on the day after the Determination Date in the month preceding
the month of such Distribution Date (or, in the case of the first Distribution
Date, on the day after the Cut-off Date) and ending on the Determination Date in
the month in which the Distribution Date occurs.
"Compensating Interest Payments" means, with respect to any Distribution
Date, any payments required to be made by the Master Servicer pursuant to
Section 8.21(d) to cover Prepayment Interest Shortfalls or Section 8.21(c) to
cover Balloon Payment Interest Shortfalls.
"Condemnation Proceeds" means any awards resulting from the full or partial
condemnation or any eminent domain proceeding or any conveyance in lieu or in
anticipation thereof with respect to a Mortgaged Property or REO Property by or
to any governmental or quasi-governmental authority.
"ContiTrade" means ContiTrade Services L.L.C. or its successor in interest.
"ContiTrade Loans" means, collectively, those Mortgage Loans sold to the
Depositor pursuant to Mortgage Loan Purchase Agreement II and shown on Schedule
II.
"Conti Guarantor" means ContiFinancial Corporation or its successor in
interest.
"Conti Guaranty Agreement" means the Guaranty Agreement dated as of March
20, 1997, from the Conti Guarantor in favor of the Depositor and certain other
specified beneficiaries.
"Controlling Class" means the most subordinate Class of Principal Balance
Certificates outstanding at any time of determination (or, if the then Class
Principal Balance of such Class of Certificates is less than 25% of the initial
Class Principal Balance thereof and there is a more senior Class of Principal
Balance Certificates then outstanding, the next most subordinate Class of
Principal Balance Certificates). For purposes of determining the Controlling
Class, the Class A Certificates will be treated as a single Class of
Certificates, the Subordinate Certificates will be subordinate to the Class A
Certificates, and each Class of Subordinate
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Certificates will be subordinate to each other Class of Subordinate
Certificates, if any, with an earlier alphabetical Class designation. As of the
Closing Date, the Controlling Class will be the Class J Certificates.
"Controlling Person" means, with respect to any Person, any other Person
that constitutes a "controlling person" within the meaning of Section 15 of the
Securities Act.
"Corporate Trust Office" means, with respect to the presentment and
surrender of Certificates for the final distribution thereon or the presentment
and surrender of Certificates for any other purpose, the principal corporate
trust office of the Trustee or the New York Presenting Office (if any). The
principal corporate trust office of the Trustee is presently located at 135
South LaSalle Street, Suite 1740, Chicago, IL 60674-4107, Attention:
Asset-Backed Securities Trust Services Group--Morgan Stanley Series 1997-C1, or
at such other address as the Trustee may designate from time to time by notice
to the Certificateholders, the Depositor, the Master Servicer and the Special
Servicer.
"Corrected Mortgage Loan" means any Mortgage Loan that had been a Specially
Serviced Mortgage Loan, has ceased to be such in accordance with the definition
of "Specially Serviced Mortgage Loan" (other than by reason of a Liquidation
Event occurring in respect of such Mortgage Loan or a related Mortgaged Property
becoming an REO Property) and is not the subject of an existing Servicing
Transfer Event.
"CPR" means an assumed constant rate of prepayment each month (which is
quoted on a per annum basis) relative to the then outstanding principal balance
of a pool of mortgage loans for the life of such mortgage loans.
"Cross-Collateralized Mortgage Loans" means any two or more Mortgage Loans
listed on the Mortgage Loan Schedule that are cross-collateralized with each
other.
"Current Principal Distribution Amount" means with respect to either Loan
Group for any Distribution Date, an amount equal to the aggregate of:
(a) the principal portions of all Monthly Payments (other than Balloon
Payments) and any Assumed Monthly Payments due or deemed due, as the case
may be, in respect of the Mortgage Loans, including without limitation any
REO Mortgage Loans, in such Loan Group for their respective Due Dates
occurring during the related Collection Period; and
(b) that portion of all payments (including without limitation
Principal Prepayments and Balloon Payments), Liquidation Proceeds,
Condemnation Proceeds, Insurance Proceeds, Repurchase Proceeds, payments of
Substitution Shortfall Amounts, REO Income and other collections that were
received on or in respect of the Mortgage Loans (including without
limitation any REO Mortgage Loans) in such Loan Group (or received on or in
respect of any related REO Properties) during the related Collection Period
and were identified and applied by the Master Servicer in accordance with
Section 1.2 as payments or other recoveries of principal of such Mortgage
Loans, in each case net of any portion of such amounts that represents (i)
a payment or other recovery of the principal portion of any Monthly Payment
(other than a Balloon Payment)
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due, or of the principal portion of any Assumed Monthly Payment deemed due,
in respect of any such Mortgage Loan on a Due Date during or prior to the
related Collection Period and not previously paid or recovered or (ii) an
early payment (other than in the form of a Principal Prepayment) of the
principal portion of any Monthly Payment due in respect of any such
Mortgage Loan on a Due Date subsequent to the end of the related Collection
Period.
"Custodian" means the Trustee or any Person who is appointed by the Trustee
at any time as custodian pursuant to Section 7.9(h) and who is unaffiliated with
the Depositor and each Seller.
"Cut-off Date" means March 1, 1997.
"Cut-off Date Principal Balance" means, with respect to any Mortgage Loan
included in the Trust Fund as of the Closing Date, the unpaid principal balance
of such Mortgage Loan as of the Cut-off Date, reduced by all payments of
principal due on or before the Cut-off Date, whether or not paid.
"DCR" means Duff and Phelps Credit Rating Co. or its successor in interest.
"Debt Service Coverage Ratio" means, with respect to any Mortgage Loan (or
group of Cross-Collateralized Mortgage Loans) for any specified period, the debt
service coverage ratio calculated in accordance with Exhibit G.
"Debt Service Reduction Amount" means, with respect to any Mortgage Loan
for any Due Date, the amount of the reduction of the Monthly Payment for such
Due Date with respect to such Mortgage Loan as a result of any proceeding under
bankruptcy law or any similar proceeding (other than a Deficient Valuation
Amount); provided, however, that in the case of an amount that is deferred, but
not forgiven, such reduction shall not constitute a Debt Service Reduction
Amount.
"Defaulted Mortgage Loan" means a Mortgage Loan that is at least 60 days
delinquent in respect of any Monthly Payment (such delinquency to be determined
without giving effect to any grace period permitted by the related Mortgage or
Mortgage Note) and that has or, in the good faith and reasonable judgment of the
Special Servicer, will become the subject of foreclosure or similar proceedings.
"Default Interest" means, with respect to any Mortgage Loan (including
without limitation an REO Mortgage Loan), any amounts collected thereon, other
than Late Fees and Prepayment Premiums, that represent additional interest in
excess of interest on the principal balance of such Mortgage Loan accrued at the
related Mortgage Rate.
"Deficient Valuation" means, with respect to any Mortgage Loan, a valuation
by a court of competent jurisdiction of the Mortgaged Property relating to a
Mortgage Loan in an amount less than the then outstanding indebtedness under
such Mortgage Loan, which valuation results from a proceeding initiated under
the United States Bankruptcy Code, as amended from time to time, and that
reduces the amount the Mortgagor is required to pay under such Mortgage Loan.
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"Deficient Valuation Amount" means the amount by which the total amount due
with respect to a Mortgage Loan (excluding interest not yet accrued), including
the principal balance of a Mortgage Loan plus any accrued and unpaid interest
thereon and any other amounts recoverable from the Mortgagor with respect
thereto pursuant to the terms thereof, is reduced in connection with a Deficient
Valuation.
"Definitive Certificates" means Certificates of any Class issued in
definitive, fully registered, certificated form without interest coupons.
"Deleted Mortgage Loan" means a Mortgage Loan which is repurchased from the
Trust pursuant to the terms hereof or as to which one or more Qualifying
Substitute Mortgage Loans are substituted.
"Depositor" means Morgan Stanley Capital I Inc., a Delaware corporation,
and its successors in interest.
"Depository" has the meaning set forth in Section 3.6(a).
"Depository Agreement" means the Letter of Representations dated March 26,
1997, by and among the Depositor, the Trustee and the Depository.
"Determination Date" means, with respect to any Distribution Date, the
fifth day of the month in which such Distribution Date occurs (or, if such fifth
day is not a Business Day, the Business Day immediately preceding such fifth
day).
"Directly Operate" means, with respect to any REO Property, the furnishing
or rendering of services to the tenants thereof, the management or operation of
such REO Property, the holding of such REO Property primarily for sale to
customers, the performance of any construction work thereon or any use of such
REO Property in a trade or business conducted by the Trust, in each case other
than through an Independent Contractor; provided, however, that the Trustee (or
the Special Servicer on behalf of the Trustee) shall not be considered to
Directly Operate an REO Property solely because the Trustee (or the Special
Servicer on behalf of the Trustee) establishes rental terms, chooses tenants,
enters into or renews leases, deals with taxes and insurance, or makes decisions
as to repairs, tenant improvements or capital expenditures with respect to such
REO Property or undertakes any ministerial action incidental thereto.
"Discount Rate" has the meaning set forth in Section 6.4(b).
"Disqualified Organization" means any of (i) the United States, any State
or any political subdivision thereof, or any agency or instrumentality of any of
the foregoing (other than an instrumentality which is a corporation if all of
its activities are subject to tax and, except for FHLMC, a majority of its board
of directors is not selected by any such governmental unit), (ii) a foreign
government, international organization or any agency or instrumentality of
either of the foregoing, (iii) an organization (except certain farmers'
cooperatives described in Section 521 of the Code) which is exempt from tax
imposed by Chapter 1 of the Code (unless such organization is subject to the tax
imposed by Section 511 of the Code on unrelated business taxable income),
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(iv) rural electric and telephone cooperatives described in Section 1381 of the
Code and (v) any other Person so designated by the Trustee based upon an Opinion
of Counsel that the holding of an ownership interest in a Residual Certificate
by such Person may cause any of the REMIC Pools, or any Person having an
Ownership Interest in any Class of Certificates, other than such Person, to
incur a liability for any federal tax imposed under the Code that would not
otherwise be imposed but for the transfer of an ownership interest in a Residual
Certificate to such Person. The terms "United States," "State" and
"international organization" shall have the meanings set forth in Section 7701
of the Code or successor provisions.
"Distributable Certificate Interest" means, with respect to any Class of
REMIC III Regular Certificates for any Distribution Date, the Accrued
Certificate Interest in respect of such Class of Certificates for such
Distribution Date, reduced (to not less than zero) by that portion, if any, of
the Net Aggregate Prepayment Interest Shortfall, if any, for such Distribution
Date allocated to such Class of Certificates as set forth below, and increased
by any Class Interest Shortfall in respect of such Class of Certificates for
such Distribution Date. The Net Aggregate Prepayment Interest Shortfall, if any,
for each Distribution Date shall be allocated on such Distribution Date among
the respective Classes of REMIC III Regular Certificates, pro rata, in
accordance with the respective amounts of Accrued Certificate Interest for such
Classes of Certificates for such Distribution Date.
"Distribution Account" has the meaning set forth in of Section 5.3.
"Distribution Date" means the 15th day of each month or, if any such 15th
day is not a Business Day, the next succeeding Business Day, commencing in
April, 1997.
"Document Defect" has the meaning set forth in Section 2.3(a).
"Due Date" means: (i) with respect to any Mortgage Loan (other than an REO
Mortgage Loan) on or prior to its Maturity Date, the day of the month set forth
in the related Mortgage Note on which each Monthly Payment thereon is scheduled
to be first due; (ii) with respect to any Balloon Mortgage Loan (other than an
REO Mortgage Loan) after the Maturity Date therefor, the day of the month set
forth in the related Mortgage Note on which each Monthly Payment (other than, to
the extent different, the Balloon Payment) on such Mortgage Loan had been
scheduled to be first due; and (iii) with respect to any REO Mortgage Loan, the
day of the month set forth in the related Mortgage Note on which each Monthly
Payment on such Mortgage Loan prior to its becoming an REO Mortgage Loan had
been scheduled to be first due.
"Effective Class Notional Amount" means, with respect to the Class IO-1
Certificates, an aggregate notional amount that is equal to (i) as of any date
of determination that coincides with or precedes the Class A-2 Cross-Over Date,
the then Uncertificated Principal Balance of REMIC II Regular Interest LG1, and
(ii) as of any date of determination that is subsequent to the Class A-2
Cross-Over Date, the then actual Class Notional Amount of such Class of
Certificates.
"Effective Certificate Notional Amount" means, with respect to any Class IO
Certificate as of any date of determination, the product of (i) the Percentage
Interest evidenced
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by such Certificate, multiplied by (ii) the then Effective Class Notional Amount
of the Class IO Certificates.
"Effective Pass-Through Rate" means, with respect to the Class IO-1
Certificates, (a) with respect to any Distribution Date that coincides with or
precedes the Class A-2 Cross-Over Date, a rate per annum equal to the excess, if
any, of (i) the REMIC II Remittance Rate applicable to REMIC II Regular Interest
LG1 for such Distribution Date, over (ii) the weighted average of the respective
REMIC II Remittance Rates applicable to REMIC II Regular Interest A-1A, REMIC II
Regular Interest A-1B, REMIC II Regular Interest A-1C, REMIC II Regular Interest
B, REMIC II Regular Interest C, REMIC II Regular Interest D, REMIC II Regular
Interest E, REMIC II Regular Interest F, REMIC II Regular Interest G, REMIC II
Regular Interest H and REMIC II Regular Interest J for such Distribution Date
(weighted on the basis of the respective Uncertificated Principal Balances of
such REMIC II Regular Interests immediately prior to such Distribution Date),
and (b) with respect to any Distribution Date that is subsequent to the Class
A-2 Cross-Over Date, a rate per annum that is equal to the actual Pass-Through
Rate with respect to the Class IO-1 Certificates for such Distribution Date.
"Eligible Account" means (i) an account or accounts maintained with a
depository institution or trust company whose long-term unsecured debt
obligations are rated at least "A" by DCR and "Aa3" by Moody's and whose
short-term unsecured debt obligations are rated "D-1" by DCR and "Prime-1" by
Moody's at the time of any deposit therein (or if such depository institution or
trust company is not rated by DCR, the equivalent ratings assigned by Moody's
and at least one other nationally recognized statistical rating agencies),
provided that funds held in any account that constitutes an Eligible Account
solely pursuant to this clause (i) shall, if the long-term unsecured debt
obligations of the depository cease to satisfy the ratings criteria described
above, be moved within 30 days of such failure to a new account with a
depository whose long-term unsecured debt obligations satisfy such ratings
criteria or to an account described in the immediately following clause (ii) or
clause (iii); or (ii) a segregated trust account or accounts maintained with the
corporate trust department of a federally or state chartered depository
institution or trust company acting in its fiduciary capacity, which may be the
Trustee, provided that any such institution is subject to regulations regarding
fiduciary funds on deposit substantially similar to 12 C.F.R. Section 9.10(b);
or (iii) any other account acceptable to the Rating Agencies as an Eligible
Account (as evidenced by written confirmation from each Rating Agency to the
effect that the use of such account will not result in a qualification,
downgrading or withdrawal of the rating then assigned to any Class of
Certificates by either Rating Agency). Eligible Accounts may bear interest.
"Eligible Investments" means any one or more of the following obligations
or securities:
(i) direct obligations of, and obligations fully guaranteed as to
timely payment of principal and interest by, the United States of America,
FNMA, FHLMC or any agency or instrumentality of the United States of
America the obligations of which are backed by the full faith and credit of
the United States of America; provided that any obligation of, or guarantee
by, FNMA or FHLMC, other than an unsecured senior debt obligation of FNMA
or FHLMC, shall
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be an Eligible Investment only if Rating Agency Confirmation is obtained
with respect to such investment;
(ii) demand and time deposits in, certificates of deposit of, or
bankers' acceptances issued by, any depository institution or trust company
(including the Trustee, the Fiscal Agent, the Master Servicer, the Special
Servicer or any Affiliate of the Master Servicer, the Special Servicer, the
Fiscal Agent or the Trustee, acting in its commercial capacity)
incorporated or organized under the laws of the United States of America or
any State thereof and subject to supervision and examination by federal or
state banking authorities, so long as the commercial paper or other
short-term debt obligations of such depository institution or trust company
are rated "D-1+" by DCR and "Prime-1" by Moody's and the long-term
unsecured debt obligations of such depository institution or trust company
have been assigned a rating by Moody's at least equal to the applicable
Minimum Maturity-Based Rating or, alternatively, so long as the ratings on
such obligations are otherwise acceptable to the Rating Agencies;
(iii) repurchase agreements or obligations with respect to any
security described in clause (i) above where such security has a remaining
maturity of one year or less and where such repurchase obligation has been
entered into with a depository institution or trust company (acting as
principal) described in clause (ii) above and where such repurchase
obligation will mature prior to the Business Day preceding the next date
upon which, as described in this Agreement, such amounts are required to be
withdrawn from the Collection Account and which meets the minimum rating
requirement for such entity described above;
(iv) securities (other than stripped bonds or stripped coupons)
bearing interest or sold at a discount issued by any corporation
incorporated under the laws of the United States of America or any state
thereof, which securities are rated "AAA" by DCR and "Aaa" by Moody's,
unless otherwise specified in writing by the Rating Agency; provided that
securities issued by any particular corporation will not be Eligible
Investments to the extent that investment therein will cause the then
outstanding principal amount of securities issued by such corporation and
held in the Collection Account to exceed 10% of the sum of the aggregate
Certificate Principal Balance of the Principal Balance Certificates and the
aggregate principal amount of all Eligible Investments in the Collection
Account;
(v) commercial paper (including both non-interest-bearing discount
obligations and interest-bearing obligations (A) payable on demand or on a
specified date not more than one year after the date of issuance thereof),
rated "D-1+" by DCR and "Prime-1" by Moody's and issued by an entity whose
long-term unsecured debt has been assigned a rating by Moody's at least
equal to the applicable Minimum Maturity-Based Rating or, alternatively,
(B) with respect to which Rating Agency Confirmation has been obtained;
(vi) units of investment funds (including money market funds) rated in
the highest applicable long-term rating category by DCR and Moody's;
(vii) guaranteed reinvestment agreements maturing within 365 days or
less issued by any bank, insurance company or other corporation whose
long-term unsecured debt rating is not less than "Aaa" or "AAA" (or its
equivalent rating) by Moody's and DCR (if rated by DCR
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or, if not rated by DCR, by Moody's and another nationally recognized
statistical rating organization);
(viii) any money market funds rated "Aaa" or "AAA" (or its equivalent
rating) by Moody's and DCR (if rated by DCR or, if not rated by DCR, by
Moody's and another nationally recognized statistical rating organization),
and any other demand, money-market or time deposit, or any other
obligation, security or investment, with respect to which Rating Agency
Confirmation has been obtained; and
(ix) such other investments bearing interest or sold at a discount, or
earning a return "in the nature of interest" within the meaning of Treasury
Regulation Section 1.860G-2(g)(1) (as evidenced by an Opinion of Counsel
delivered to the Trustee by the Master Servicer at the Master Servicer's
expense), as are acceptable to the Rating Agencies (as evidenced by Rating
Agency Confirmation) and otherwise treated as "permitted investments" under
Code Section 860G(a)(5);
provided (A) such investment is held for a temporary period pursuant to Section
1.860G-2(g)(1) of the Treasury Regulations, (B) such investment is payable by
the obligor in U.S. dollars, and (C) that no such instrument shall be an
Eligible Investment (1) if such instrument evidences either (a) a right to
receive only interest payments or only principal payments with respect to the
obligations underlying such instrument or (b) a right to receive both principal
and interest payments derived from obligations underlying such instrument and
the principal and interest payments with respect to such instrument provide a
yield to maturity of greater than 120% of the yield to maturity at par of such
underlying obligations, or (2) if it may be redeemed at a price below the
purchase price; and provided, further, that interest on any variable rate
instrument shall be tied to a single interest rate index plus a single fixed
spread (if any) and move proportionally with that index; and provided, further,
that no amount beneficially owned by any REMIC Pool (including any amounts
collected by the Master Servicer but not yet deposited in the Collection
Account) may be invested in investments treated as equity interests for Federal
income tax purposes, unless the Master Servicer and the Trustee shall receive an
Opinion of Counsel to the effect that such investment will not adversely affect
the status of such REMIC Pool as a REMIC under the Code or result in imposition
of a tax on any such REMIC Pool. No Eligible Investments shall be purchased at a
price in excess of par. For the purpose of this definition, (x) units of
investment funds (including money market funds) shall be deemed to mature daily,
and (y) the "Minimum Maturity-Based Rating" means: (i) if the subject investment
matures within one month, "A2"; (ii) if the subject investment matures more than
one month later but within three months, "A1"; (iii) if the subject investment
matures more than three months later but within six months, "Aa3"; and (iv) if
the subject investment matures more than six months later, "Aaa".
"Emergency Advance" means any Servicing Advance that must be made within
five Business Days by the Special Servicer in order to avoid any material
penalty, any material harm to a Mortgaged Property or any other material adverse
consequence to the Trust.
"Environmental Assessment" means "Phase I Assessment" conducted in
accordance with ASTM Standard E 1527-93 or any successor thereto published by
ASTM.
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"Environmental Laws" means any and all federal, state and local statutes,
laws, regulations, ordinances, rules, judgments, orders, decrees, permits,
concessions, grants, franchises, licenses, agreements or other governmental
restrictions, now or hereafter in effect, relating to the environment or to
emissions, discharges or releases of chemical substances, including, without
limitation, any and all pollutants, contaminants, petroleum or petroleum
products, asbestos or asbestos-containing materials, polychlorinated biphenyls,
urea-formaldehyde insulation, radon, industrial, toxic or hazardous substances
or wastes, into the environment, including, without limitation, ambient air,
surface water, ground water or land, or otherwise relating to the manufacture,
processing, distribution, use, labeling, registration, treatment, storage,
disposal, transport or handling of any of the foregoing substances or wastes or
the clean-up or other remediation thereof.
"Equivalent Actual/360 Rate" means, when used with respect to the REMIC I
Remittance Rate applicable to any 30/360 REMIC I Regular Interest for any
Distribution Date, the per annum rate at which interest would have to accrue
during the applicable Interest Accrual Period on the Uncertificated Principal
Balance of such REMIC I Regular Interest outstanding immediately prior to such
Distribution Date, assuming such accrual of interest were to occur on the basis
of a 360-day year and the actual number of days elapsed during the applicable
Interest Accrual Period, in order to produce the actual Uncertificated Accrued
Interest in respect of such REMIC I Regular Interest for such Distribution Date.
"Equivalent 30/360 Rate" means: (i) when used with respect to the REMIC II
Remittance Rate applicable to REMIC II Regular Interest LG2 or REMIC II Regular
Interest A-2 for any Distribution Date, the per annum rate at which interest
would have to accrue during the applicable Interest Accrual Period on the
Uncertificated Principal Balance of such REMIC II Regular Interest outstanding
immediately prior to such Distribution Date, assuming such accrual of interest
were to occur on the basis of a 360-day year consisting of twelve 30-day months,
in order to produce the actual Uncertificated Accrued Interest in respect of
such REMIC II Regular Interest for such Distribution Date; and (ii) when used
with respect to the REMIC I Remittance Rate applicable to any Non-30/360 REMIC I
Regular Interest for any Distribution Date, the per annum rate at which interest
would have to accrue during the applicable Interest Accrual Period on the
Uncertificated Principal Balance of such REMIC I Regular Interest outstanding
immediately prior to such Distribution Date, assuming such accrual of interest
were to occur on the basis of a 360-day year consisting of twelve 30-day months,
in order to produce the actual Uncertificated Accrued Interest in respect of
such REMIC I Regular Interest for such Distribution Date.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended.
"Escrow Payment" means any payment received by the Master Servicer or the
Special Servicer for the account of any Mortgagor for application toward the
payment of real estate taxes, assessments, insurance premiums, ground rents (if
applicable) and similar items in respect of the related Mortgaged Property.
"Event of Default" means one or more of the events described in Section
9.1(a).
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"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Expense Loss" means a loss realized upon payment by the Trust of an
Additional Trust Expense.
"FDIC" means the Federal Deposit Insurance Corporation or any successor
thereto.
"FHLMC" means the Federal Home Loan Mortgage Corporation, or any successor
thereto.
"Final Certification" has the meaning set forth in Section 2.2.
"Final Rated Distribution Date" means the Distribution Date in February
2020.
"Final Recovery Determination" means a determination by the Special
Servicer with respect to any defaulted Mortgage Loan or REO Property (other than
a Mortgage Loan or REO Property, as the case may be, that was purchased or
replaced by a Seller pursuant to Section 6 of the related Mortgage Loan Purchase
Agreement, by an Additional Warranting Party pursuant to the related Additional
Warranty Agreement, by the Conti Guarantor pursuant to the Conti Guaranty
Agreement, by the Majority Certificateholder of the Controlling Class, the
Master Servicer or the Special Servicer pursuant to Section 8.31(a), or by any
party entitled to effect an optional termination of the Trust pursuant to
Section 10.1) that, in the reasonable and good faith judgment of the Special
Servicer, there has been a recovery of all Insurance Proceeds, Condemnation
Proceeds, Liquidation Proceeds, and other payments or recoveries that, in the
Special Servicer's reasonable and good faith judgment, exercised without regard
to any obligation of the Master Servicer or the Special Servicer to make
payments from its own funds pursuant to Section 8.5, will ultimately be
recoverable.
"Fiscal Agent" means ABN AMRO Bank N.V., a banking organization organized
under the laws of the Netherlands, its successor in interest, or any successor
Fiscal Agent appointed as herein provided.
"Fiscal Agent Termination Event" has the meaning set forth in Section 4.6.
"Fixed Rate Mortgage Loan" means a Mortgage Loan as to which the related
Mortgage Note provides, as of the Closing Date, for a Mortgage Rate that remains
fixed through the remaining term thereof (or, in two cases, provides for a
one-time adjustment upward on a predetermined date by a fixed number of
percentage points).
"FNMA" means the Federal National Mortgage Association, or any successor
thereto.
"Global Certificate" has the meaning set forth in Section 3.6.
"GMACCM" means GMAC Commercial Mortgage Corporation or its successor in
interest.
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"GMACCM Loans" means, collectively, those Mortgage Loans sold to the
Depositor pursuant to Mortgage Loan Purchase Agreement III and shown on Schedule
III hereto.
"Gross Margin" means with respect to each Adjustable Rate Mortgage Loan
(including without limitation any such Mortgage Loan that is an REO Mortgage
Loan), the fixed number of percentage points set forth in the Mortgage Loan
Schedule that is added to the applicable value of the related Index on each
Interest Rate Adjustment Date in accordance with the terms of the related
Mortgage Note to determine, subject to any applicable periodic and lifetime
limitations on adjustments thereto, the related Mortgage Rate.
"Ground Lease" means the ground lease pursuant to which any Mortgagor holds
a leasehold interest in the related Mortgaged Property.
"Group 1 Certificates" means, collectively, the Class IO-1, Class A-1A,
Class A-1B, Class A-1C, Class B, Class C, Class D, Class E, Class F, Class G,
Class H and Class J Certificates.
"Group 2 Certificates" means, collectively, the Class IO-2 and Class A-2
Certificates.
"Group 1 Loan" means any Mortgage Loan (including without limitation any
REO Mortgage Loan) in Loan Group 1.
"Group 2 Loan" means any Mortgage Loan (including without limitation any
REO Mortgage Loan) in Loan Group 2.
"Hazardous Materials" means any dangerous, toxic or hazardous pollutants,
chemicals, wastes, or substances, including, without limitation, those so
identified pursuant to CERCLA or any other federal, state or local environmental
related laws and regulations, and specifically including, without limitation,
asbestos and asbestos-containing materials, polychlorinated biphenyls ("PCBs"),
radon gas, petroleum and petroleum products, urea formaldehyde and any
substances classified as being "in inventory", "usable work in process" or
similar classification which would, if classified as unusable, be included in
the foregoing definition.
"Holder" means the Person in whose name a Certificate is registered on the
Certificate Register except that, solely for the purposes of giving any consent,
approval or waiver pursuant to this Agreement, any Certificate registered in the
name of the Master Servicer, the Special Servicer, the Depositor or any
Affiliate of any of them shall be deemed not to be outstanding, and the Voting
Rights to which it is entitled shall not be taken into account in determining
whether the requisite percentage of Voting Rights necessary to effect any such
consent, approval or waiver has been obtained, except as otherwise provided in
Sections 8.32, 9.4 and 13.3. The Trustee shall be entitled to request and rely
upon a certificate of the Master Servicer, the Special Servicer or the Depositor
in determining whether a Certificate is registered in the name of an Affiliate
of such Person. All references herein to "Holders" or "Certificateholders" shall
reflect the rights of Certificate Owners as they may indirectly exercise
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such rights through the Clearing Agency and its Participants, except as
otherwise specified herein; provided, however, that the parties hereto shall be
required to recognize as a "Holder" or "Certificateholder" only the Person in
whose name a Certificate is registered in the Certificate Register.
"Independent" means, when used with respect to any Accountants, a Person
who is "independent" within the meaning of Rule 2-01(b) of the Securities and
Exchange Commission's Regulation S-X. Independent means, when used with respect
to any other Person, a Person who (a) is in fact independent of another
specified Person and any Affiliate of such other Person, (b) does not have any
material direct financial interest in such other Person or any Affiliate of such
other Person and (c) is not connected with such other Person or any Affiliate of
such other Person as an officer, employee, promoter, underwriter, trustee,
partner, director or Person performing similar functions.
"Independent Contractor" means any Person that would be an "independent
contractor" with respect to REMIC I within the meaning of Section 856(d)(3) of
the Code if REMIC I were a real estate investment trust (except that the
ownership test set forth in that section shall be considered to be met by any
Person that owns, directly or indirectly, 35 percent or more of any Class of
Certificates, or such other interest in any Class of Certificates as is set
forth in an Opinion of Counsel, which shall be at no expense to the Trustee or
the Trust, delivered to the Trustee), so long as REMIC I does not receive or
derive any income from such Person and provided that the relationship between
such Person and REMIC I is at arm's length, all within the meaning of Treasury
Regulation Section 1.856-4(b)(5), or any other Person upon receipt by the
Trustee of an Opinion of Counsel, which shall be at no expense to the Trustee or
the Trust, to the effect that the taking of any action in respect of any REO
Property by such Person, subject to any conditions therein specified, that is
otherwise herein contemplated to be taken by an Independent Contractor will not
cause such REO Property to cease to qualify as "foreclosure property" within the
meaning of Section 860G(a)(8) of the Code, or cause any income realized in
respect of such REO Property to fail to qualify as Rents from Real Property.
"Index" means with respect to each Adjustable Rate Mortgage Loan (including
without limitation any such Mortgage Loan that is an REO Mortgage Loan), for
each Interest Rate Adjustment Date, the base index used to determine the new
Mortgage Rate in effect thereon as specified in the related Mortgage Note. If
the Index currently in effect for any Adjustable Rate Mortgage Loan ceases to be
available, the Master Servicer shall, subject to Section 8.21 and the terms of
the related Mortgage Note, select a comparable alternative index.
"Indirect Participants" means entities, such as banks, brokers, dealers and
trust companies, that clear through or maintain a custodial relationship with a
Participant, either directly or indirectly.
"Initial Certification" has the meaning set forth in Section 2.2.
"Initial Loan Group 1 Balance" means the aggregate Cut-off Date Principal
Balance of Loan Group 1.
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"Initial Loan Group 2 Balance" means the aggregate Cut-off Date Principal
Balance of Loan Group 2.
"Initial Pool Balance" means the aggregate Cut-off Date Principal Balance
of the Mortgage Pool.
"Institutional Accredited Investor" means an institutional accredited
investor within the meaning of Rule 501(a)(1), (2), (3) or (7) of Regulation D
of the Securities Act.
"Insurance Policy" means any hazard insurance policy, flood insurance
policy or title insurance policy relating to any Mortgage Loan or Mortgaged
Property or REO Property in effect as of the Closing Date or thereafter during
the term of this Agreement.
"Insurance Proceeds" means amounts paid by the insurer under any Insurance
Policy.
"Interest Accrual Period" means with respect to any REMIC I Regular
Interest, any REMIC II Regular Interest or any Class of REMIC III Regular
Certificates for any Distribution Date, the calendar month immediately preceding
the month in which such Distribution Date occurs.
"Interest Only Certificates" means, collectively, the Class IO-1 and Class
IO-2 Certificates.
"Interest Rate Adjustment Date" means, with respect to each Adjustable Rate
Mortgage Loan (including without limitation any such Mortgage Loan that is an
REO Mortgage Loan), any date on which the related Mortgage Rate is subject to
adjustment pursuant to the terms of the related Mortgage Note.
"Interested Person" means, as of any date of determination, the Master
Servicer, the Special Servicer, the Depositor, the Operating Adviser, any
Certificateholder, or any Person known to a Responsible Officer of the Trustee
to be an Affiliate of any of them.
"Issue Price" means, with respect to each Class of Certificates, the "issue
price" as defined in the REMIC Provisions.
"Late Collections" means with respect to any Mortgage Loan (including
without limitation any REO Mortgage Loan), all amounts received thereon during
any Collection Period, whether as payments, Insurance Proceeds, Condemnation
Proceeds, Liquidation Proceeds, Repurchase Proceeds, payments of Substitution
Shortfall Amounts, or otherwise, which represent late payments or collections of
the principal and/or interest portions of Monthly Payments (other than the
Balloon Payments) and/or Assumed Monthly Payments due or deemed due in respect
of such Mortgage Loan (without regard to any acceleration of amounts due
thereunder by reason of default) on a Due Date in a previous Collection Period
and not previously recovered; provided that "Late Collections" shall in no event
include Penalty Charges.
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"Late Fee" shall mean a fee paid or payable, as the context may require, by
a Mortgagor as provided in the related Mortgage Note or Mortgage in connection
with a late payment made on the related Mortgage Loan by such Mortgagor.
"LIBOR" means, with respect to each Distribution Date, the rate per annum
determined as set forth in Section 1.3.
"LIBOR Business Day" means any day on which banks in both London, England
and New York, New York are open for business.
"LIBOR Determination Date" means, with respect to any Distribution Date
subsequent to the initial Distribution Date, the second LIBOR Business Day prior
to the related Interest Accrual Period.
"Liquidation Event" means with respect to any Mortgage Loan (other than an
REO Mortgage Loan), any of the following events: (i) such Mortgage Loan is paid
in full; (ii) a Final Recovery Determination is made with respect to such
Mortgage Loan; (iii) such Mortgage Loan is repurchased or replaced by a Seller
pursuant to Section 6 of the related Mortgage Loan Purchase Agreement, by an
Additional Warranting Party pursuant to the related Additional Warranty
Agreement or by the Conti Guarantor pursuant to the Conti Guaranty Agreement;
(iv) such Mortgage Loan is purchased by the Majority Certificateholder of the
Controlling Class, the Master Servicer or the Special Servicer, or is otherwise
sold, pursuant to Section 8.31; or (v) such Mortgage Loan is purchased by any
Person entitled to effect an optional termination of the Trust pursuant to
Section 10.1. With respect to any REO Property (and the related REO Mortgage
Loan), any of the following events: (i) a Final Recovery Determination is made
with respect to such REO Property; (ii) such REO Property is sold pursuant to
Section 8.31; or (iii) such REO Property is purchased by any Person entitled to
effect an optional termination of the Trust pursuant to Section 10.1.
"Liquidation Expenses" means all customary, reasonable and necessary "out
of pocket" costs and expenses incurred on behalf of the Trust by the Special
Servicer in connection with the liquidation of any Specially Serviced Mortgage
Loan or REO Property pursuant to Section 8.7 or 8.31 (including, without
limitation, legal fees and expenses, title and escrow expenses, committee or
referee fees and, if applicable, brokerage commissions and conveyance taxes)
that were not covered by a Servicing Advance.
"Liquidation Fee" means, with respect to each Specially Serviced Mortgage
Loan or REO Property as to which Liquidation Proceeds have been received (other
than any Specially Serviced Mortgage Loan or REO Property purchased by the
Majority Certificateholder of the Controlling Class, the Master Servicer or the
Special Servicer pursuant to Section 8.31(a) or by any Person entitled to effect
an optional termination of the Trust pursuant to Section 10.1) the fee
designated as such and payable to the Special Servicer pursuant to Section
8.10(b).
"Liquidation Fee Rate" means, with respect to each Specially Serviced
Mortgaged Loan or REO Property as to which a Liquidation Fee is payable, 1.0%.
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"Liquidation Proceeds" means proceeds (other than payments by a Mortgagor,
Insurance Proceeds, Condemnation Proceeds, Repurchase Proceeds, payments of
Substitution Shortfall Amounts and REO Income) from the sale or liquidation of a
Mortgage Loan or related REO Property, net of related Liquidation Expenses.
"Loan Group" means each of Loan Group 1 and Loan Group 2.
"Loan Group 1" means, collectively, all of the Fixed Rate Mortgage Loans
(including without limitation any such Mortgage Loans that have become REO
Mortgage Loans).
"Loan Group 2" means, collectively, all of the Adjustable Rate Mortgage
Loans (including without limitation any such Mortgage Loans that have become REO
Mortgage Loans).
"Loan-to-Value Ratio" means, with respect to any Mortgage Loan, as of any
date of determination, the fraction, expressed as a percentage, the numerator of
which is the then unpaid principal balance of such Mortgage Loan (or, if part of
a group of Cross-Collateralized Mortgage Loans, of such group), and the
denominator of which is the appraised value of the related Mortgaged Property
(or, in the case of a group of Cross-Collateralized Mortgage Loans, of all the
Mortgaged Properties securing such group) as determined by an Appraisal thereof.
"Lock-Box Account" means with respect to any Mortgage Loan, any lock-box,
cash management or similar account required under the terms of the related
Mortgage or Mortgage Note maintained by the Master Servicer in accordance with
the Servicing Standard; and such account shall not be included in the Trust.
"Lock-Box Agreement" means, with respect to any Mortgage Loan, any lock-box
agreement relating to such Mortgage Loan executed and delivered by the related
Mortgagor pursuant to which a Lock-Box Account is created.
"Losses" has the meaning set forth in Section 12.4.
"Loss Reimbursement Amount" means, with respect to any REMIC I Regular
Interest, REMIC II Regular Interest or Class of Principal Balance Certificates
for any Distribution Date (except the initial Distribution Date, with respect to
which the Loss Reimbursement Amount for such REMIC I Regular Interest, REMIC II
Regular Interest or Class of Certificates, as the case may be, will be zero), an
amount equal to (a)(i) the Loss Reimbursement Amount with respect to such REMIC
I Regular Interest, REMIC II Regular Interest or Class of Certificates, as the
case may be, for the immediately preceding Distribution Date, minus (ii) the
aggregate of all reimbursements of previously allocated and unreimbursed
Realized Losses and Expense Losses (with interest) made on the immediately
preceding Distribution Date pursuant to Section 6.2, 6.3 or 6.4, as applicable,
with respect to such REMIC I Regular Interest, REMIC II Regular Interest or
Class of Certificates, as the case may be, plus (iii) the aggregate of all
Realized Losses and Expense Losses allocated to such REMIC I Regular Interest,
REMIC II Regular Interest or Class of Certificates, as the case may be, on the
immediately preceding Distribution Date pursuant to Section 6.5, plus (b) one
month's interest (calculated on the basis of a 360-day year consisting of twelve
30-day months or, if the related Uncertificated Accrued Interest or Accrued
Certificate
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Interest, as applicable, in respect of such REMIC I Regular Interest, REMIC II
Regular Interest or Class of Certificates, as the case may be, accrues on a
different basis, on such alternative basis) on the amount described in clause
(a) at the REMIC I Remittance Rate, REMIC II Remittance Rate or Pass-Through
Rate, as applicable, in respect of such REMIC I Regular Interest, REMIC II
Regular Interest or Class of Certificates, as the case may be, for the current
Distribution Date.
"MAI" means member of the appraisal institute.
"Majority Certificateholder" means, with respect to any particular Class or
Classes of Certificates, any Certificateholder entitled to a majority of the
Voting Rights allocated to such Class or Classes, as the case may be.
"Master Servicer" means GMACCM or any successor master servicer appointed
as provided herein.
"Master Servicer Remittance Date" means, with respect to each Distribution
Date, the Business Day immediately preceding such Distribution Date.
"Master Servicer Remittance Report" means a report prepared by the Master
Servicer and 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 to the Certificateholders
pursuant to this Agreement and to furnish the Monthly Certificateholder Report
to Certificateholders required to be delivered hereunder and containing such
additional information as the Master Servicer, the Trustee and the Depositor may
from time to time mutually agree.
"Master Servicing Fee" means, with respect to each Mortgage Loan (including
without limitation each REO Mortgage Loan), the fee designated as such and
payable to the Master Servicer pursuant to Section 8.10(a).
"Master Servicing Fee Rate" means, with respect to each Mortgage Loan
(including without limitation each REO Mortgage Loan), the rate per annum
specified as such on the Mortgage Loan Schedule.
"Maturity Date" means, with respect to any Mortgage Loan as of any date of
determination, the date on which the last payment of principal is due and
payable under the related Mortgage Note, after taking into account all Principal
Prepayments received and any Deficient Valuation, Debt Service Reduction Amount
or modification of the Mortgage Loan occurring prior to such date of
determination, further taking account of the exercise of any applicable Call
Option, but without giving effect to (i) any acceleration of the principal of
such Mortgage Loan by reason of a default or (ii) any grace period permitted by
the related Mortgage Note. In clarification of the foregoing, if the Call Option
is exercised with respect to any Callable Mortgage Loan in accordance with
Section 8.21(e), the Maturity Date for such Mortgage Loan shall thereupon be the
Call Date.
"Memorandum" means the private placement memorandum dated March 20,
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1997, relating to the Class F, Class G, Class H and Class J Certificates.
"Money Term" means with respect to any Mortgage Loan, the Maturity Date,
Mortgage Rate, principal balance, amortization term or payment frequency thereof
(and shall not include Late Fees or Default Interest provisions).
"Monthly Certificateholder Report" means a report prepared pursuant to
Section 5.4 by the Trustee as to each Distribution Date generally in the form
and substance of Exhibit F-1, which sets forth, to the extent applicable: (i)
the amount, if any, of the distributions on such Distribution Date to the
Holders of each Class of Principal Balance Certificates applied to (A) reduce
the respective Class Principal Balance thereof and (B) reimburse previously
allocated Realized Losses and/or Expense Losses (with interest); (ii) the
amount, if any, of the distributions to Holders of each Class of REMIC III
Regular Certificates allocable to (a) Distributable Certificate Interest and (b)
Prepayment Premiums; (iii) the number and aggregate Stated Principal Balance of
Mortgage Loans in the Mortgage Pool and in each Loan Group at the close of
business on such Distribution Date; (iv) the number and aggregate Stated
Principal Balance of Mortgage Loans in the Mortgage Pool and in each Loan Group
that are at the close of business on the related Determination Date (A)
delinquent one month, (B) delinquent two months, (C) delinquent three or more
months or (D) as to which foreclosure proceedings have been commenced; (v) with
respect to any REO Property acquired during the related Collection Period, the
Stated Principal Balance of the related Mortgage Loan as of the date of
acquisition of the REO Property; (vi) (A) the book value of any REO Property
included in the Trust Fund as of the related Determination Date, (B) as to any
REO Property sold during the related Collection Period, the date of the related
Final Recovery Determination and the amount of the proceeds of such sale
deposited into the Collection Account, and (C) 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 the loan number of the related
Mortgage Loan; (vii) the Class Principal Balance or Class Notional Amount (or,
in the case of the Class IO-1 Certificates the Effective Class Notional Amount),
as the case may be, and Certificate Factor of each Class of REMIC III Regular
Certificates before and after giving effect to the distributions made on such
Distribution Date; (viii) the aggregate amount of Principal Prepayments made
during the related Collection Period; (ix) the Pass-Through Rate (or, in the
case of the Class IO-1 Certificates, the Effective Pass-Through Rate) applicable
to each Class of REMIC III Regular Certificates for such Distribution Date; (x)
the aggregate amount of servicing compensation retained by or paid to the Master
Servicer and the Special Servicer; (xi) the Net Aggregate Prepayment Interest
Shortfall, if any, for such Distribution Date and the amount of Realized Losses
or Expense Losses, if any, incurred with respect to the Mortgage Loans during
the related Collection Period; (xii) the aggregate amount of Servicing Advances
and P&I Advances outstanding as of the end of the prior calendar month that have
been made by the Master Servicer, the Special Servicer, the Trustee and the
Fiscal Agent, separately stated; and (xiv) the amount of any Appraisal
Reductions effected during the related Collection Period on a loan-by-loan basis
and the total Appraisal Reductions as of such Distribution Date. In the case of
information furnished pursuant to subclauses (i) and (ii) above, the amounts
shall be expressed as a dollar amount per $1,000 of original actual or notional
principal amount of the Certificates for all Certificates of each applicable
Class.
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"Monthly Payment" means, with respect to any Mortgage Loan, the scheduled
monthly payment of principal and/or interest on such Mortgage Loan, including
any Balloon Payment, which is payable by a Mortgagor from time to time under the
terms of the related Mortgage Note (as such may be modified at any time
following the Closing Date) and applicable law.
"Moody's" means Moody's Investors Service, Inc. or any successor in
interest.
"Mortgage" means, with respect to any Mortgage Loan, separately and
collectively, as the context may require, each mortgage, deed of trust or other
instrument securing a Mortgage Note and creating a lien on the related Mortgaged
Property.
"Mortgage File" means, collectively with respect to any Mortgage Loan, the
mortgage documents listed below:
(i) the original Mortgage Note, endorsed by the most recent endorsee
prior to the Trustee or, if none, by the originator, without
recourse, either in blank or to the order of the Trustee in the
following form: "Pay to the order of LaSalle National Bank, as
trustee for the registered holders of Morgan Stanley Capital I
Inc., Commercial Mortgage Pass-Through Certificates, Series 1997 -
C1, without recourse";
(ii) the original or a copy of the related Mortgage and, if applicable,
the originals or copies of any intervening assignments of such
Mortgage showing a complete chain of assignment from the
originator of the Mortgage Loan to the most recent assignee of
record thereof prior to the Trustee, if any, in each case with
evidence of recording indicated thereon;
(iii) an original assignment of the related Mortgage, in recordable
form, executed by the most recent assignee of record thereof prior
to the Trustee or, if none, by the originator, either in blank or
in favor of the Trustee (in such capacity);
(iv) the original or a copy of the related Assignment of Leases (if
such item is a document separate from the related Mortgage) and,
if applicable, the originals or copies of any intervening
assignments of such Assignment of Leases showing a complete chain
of assignment from the originator of the Mortgage Loan to the most
recent assignee of record thereof prior to the Trustee, if any, in
each case with evidence of recording thereon;
(v) an original assignment of any related Assignment of Leases (if
such item is a document separate from the related Mortgage), in
recordable form, executed by the most recent assignee of record
thereof prior to the Trustee or, if none, by the originator,
either in blank or in favor of the Trustee (in such capacity),
which assignment may be included as part of the corresponding
assignment of Mortgage referred to in clause (iii) above;
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(vi) an original or copy of any related security agreement (if such
item is a document separate from the related Mortgage) and, if
applicable, the originals or copies of any intervening assignments
of such security agreement showing a complete chain of assignment
from the originator of the Mortgage Loan to the most recent
assignee thereof prior to the Trustee, if any;
(vii) an original assignment of any related security agreement (if such
item is a document separate from the related Mortgage) executed by
the most recent assignee thereof prior to the Trustee or, if none,
by the originator, either in blank or in favor of the Trustee (in
such capacity), which assignment may be included as part of an
omnibus assignment covering other documents relating to the
Mortgage Loan provided that such an omnibus assignment would be
effective under applicable law;
(viii) originals or copies of all assumption, modification, written
assurance and substitution agreements, with evidence of recording
thereon (if appropriate), in those instances where the terms or
provisions of the Mortgage, Mortgage Note or any related security
document have been modified or the Mortgage Loan has been assumed;
(ix) the original or a copy of the lender's title insurance policy
issued in connection with the origination of the Mortgage Loan,
together with all endorsements or riders (or copies thereof) that
were issued with or subsequent to the issuance of such policy,
insuring the priority of the Mortgage as a first lien on the
Mortgaged Property;
(x) the original or a copy of any guaranty of the obligations of the
Mortgagor under the Mortgage Loan, together with (A) if
applicable, the originals or copies of any intervening assignments
of such guaranty showing a complete chain of assignment from the
originator of the Mortgage Loan to the most recent assignee
thereof prior to the Trustee, if any, and (B) an original
assignment of such guaranty executed by the most recent assignee
thereof prior to the Trustee or, if none, by the originator (which
assignment may be included as part of an omnibus assignment
covering other documents relating to the Mortgage Loan provided
that such an omnibus assignment would be effective under
applicable law);
(xi) (A) file or certified copies of any UCC financing statements and
continuation statements which were filed in order to perfect (and
maintain the perfection of) any security interest held by the
originator of the Mortgage Loan (and each assignee of record prior
to the Trustee) in and to the personalty of the Mortgagor at the
Mortgaged Property (in each case with evidence of filing thereon)
and which were in the possession of the related Seller (or its
agent) at the time the subject Mortgage File was delivered to the
Trustee and (B) if any such security interest is perfected
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and the earlier UCC financing statements and continuation
statements were in the possession of the Seller, a UCC financing
statement executed by the most recent assignee of record prior to
the Trustee or, if none, by the originator, evidencing the
transfer of such security interest, either in blank or in favor of
the Trustee;
(xii) the original or a copy of the power of attorney (with evidence of
recording thereon, if appropriate) granted by the Mortgagor if the
Mortgage, Mortgage Note or other document or instrument referred
to above was signed on behalf of the Mortgagor; and
(xiii) if the Mortgagor has a leasehold interest in the related Mortgaged
Property, the original ground lease or a copy thereof;
provided that whenever the term "Mortgage File" is used to refer to documents
actually received by the Trustee, such term shall not be deemed to include such
documents and instruments required to be included therein unless they are
actually so received.
"Mortgage Loan" means a mortgage loan identified on the Mortgage Loan
Schedule, as amended from time to time, and conveyed, transferred, sold,
assigned to and deposited with the Trustee pursuant to Section 2.1 or Section
2.3. As used herein, the term "Mortgage Loan" includes the related Mortgage
Note, Mortgage and other security documents contained in the related Mortgage
File.
"Mortgage Loan Due Period" means, with respect to each Mortgage Loan
(including without limitation each REO Mortgage Loan), the period beginning on
any related Due Date and ending on the day immediately preceding the next
related Due Date, inclusive.
"Mortgage Loan Purchase Agreement" means any of the Mortgage Loan Purchase
Agreement I, Mortgage Loan Purchase Agreement II or Mortgage Loan Purchase
Agreement III, as the case may be.
"Mortgage Loan Purchase Agreement I" means that certain Mortgage Loan
Purchase Agreement dated as of March 20, 1997, between MSMC and the Depositor,
with respect to the MSMC Loans.
"Mortgage Loan Purchase Agreement II" means that certain Mortgage Loan
Purchase Agreement dated as of March 20, 1997, between ContiTrade and the
Depositor, with respect to the ContiTrade Loans.
"Mortgage Loan Purchase Agreement III" means that certain Mortgage Loan
Purchase Agreement dated as of March 20, 1997, between GMACCM and the Depositor,
with respect to the GMACCM Loans.
"Mortgage Loan Schedule" or "Loan Schedule" means, collectively, the
schedules attached hereto as Schedule I, which identifies each MSMC Loan,
Schedule II attached hereto,
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which identifies each ContiTrade Loan, and Schedule III attached hereto, which
identifies each GMACCM Loan, as such schedules may be amended from time to time
pursuant to Section 2.3.
"Mortgage Note" means the note or other evidence of indebtedness evidencing
the indebtedness of a Mortgagor under a Mortgage Loan, together with any rider,
addendum or amendment thereto.
"Mortgage Pool" means, collectively, all of the Mortgage Loans (including
without limitation REO Mortgage Loans and Replacement Mortgage Loans, but
excluding Deleted Mortgage Loans).
"Mortgage Rate" means, with respect to any Mortgage Loan (including without
limitation an REO Mortgage Loan), the per annum rate at which interest is
scheduled (in the absence of default) to accrue on such Mortgage Loan (in
accordance with the terms of the related Mortgage Note (as such may be modified
at any time following the Closing Date) and applicable law, and without regard
to any passage of the Maturity Date and any acquisition of the related Mortgaged
Property as an REO Property.
"Mortgaged Property" means, individually and collectively, as the context
may require, the real property interest or interests subject to the lien of a
Mortgage and constituting collateral for a Mortgage Loan. With respect to any
Cross-Collateralized Mortgage Loan, as the context may require, "Mortgaged
Property" may mean, collectively, all the Mortgaged Properties securing such
Cross-Collateralized Mortgage Loan.
"Mortgagee" means, which respect to any Mortgage as of any date of
determination, the holder of the related Mortgage Note as of such date.
"Mortgagor" means the obligor or obligors on a Mortgage Note.
"MSMC" means Morgan Stanley Mortgage Capital Inc., or any successor in
interest.
"MSMC Loans" means, collectively, those Mortgage Loans sold to the
Depositor pursuant to Mortgage Loan Purchase Agreement I and shown on Schedule I
hereto.
"Net Aggregate Prepayment Interest Shortfall" means, with respect to any
Distribution Date, the amount, if any, by which (a) the aggregate of all
Prepayment Interest Shortfalls incurred in connection with the receipt of
Principal Prepayments on the Mortgage Loans during the related Collection
Period, exceeds (b) the sum of (i) the aggregate of all Prepayment Interest
Excesses realized in connection with the receipt of Principal Prepayments on the
Mortgage Loans during the related Collection Period, and (ii) the aggregate
amount deposited by the Master Servicer in the Distribution Account for such
Distribution Date pursuant to Section 8.21(d) in connection with such Prepayment
Interest Shortfalls.
"Net Mortgage Rate" means, with respect to any Mortgage Loan (including
without limitation an REO Mortgage Loan), as of any date of determination, a
rate per annum
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equal to the related Mortgage Rate then in effect, minus the applicable Master
Servicing Fee Rate.
"New Lease" means any lease of any REO Property entered into on behalf of
the Trust, including any lease renewed or extended on behalf of the Trust if the
Trust has the right to renegotiate the terms of such lease.
"New York Presenting Office" means any office of an agent of the Trustee or
the Certificate Registrar, located in New York, New York, as the Trustee or the
Certificate Registrar, as the case may be, may designate from time to time by
written notice to the Depositor and the Certificateholders.
"Non-30/360 REMIC I Regular Interest" means a REMIC I Regular Interest that
accrues interest other than on the basis of a 360-day year consisting of twelve
30-day months.
"Nondisqualification Opinion" means a written opinion of Independent
outside counsel addressed to the Trustee, reasonably acceptable in form and
substance to the Trustee, that a contemplated action will neither cause any
REMIC Pool to fail to qualify as a REMIC at any time that any Certificates are
outstanding nor cause a "prohibited transaction," "prohibited contribution" or
any other tax to be imposed on any REMIC Pool or the Trust.
"Nonrecoverable Advance" means any Nonrecoverable P&I Advance or
Nonrecoverable Servicing Advance.
"Nonrecoverable P&I Advance" means any P&I Advance previously made or
proposed to be made in respect of a Mortgage Loan (including, without
limitation, an REO Mortgage Loan) which, in the reasonable and good faith
judgment of the Master Servicer, the Special Servicer or, if applicable, the
Trustee or Fiscal Agent, will not be ultimately recoverable (together with
Advance Interest thereon) from late payments, Insurance Proceeds, Condemnation
Proceeds or Liquidation Proceeds, or any other recovery on or in respect of such
Mortgage Loan. The determination by the Master Servicer or, if applicable, the
Trustee or Fiscal Agent that it has made a Nonrecoverable P&I Advance or that
any proposed P&I Advance, if made, would constitute a Nonrecoverable P&I
Advance, shall be evidenced by an Officer's Certificate delivered to the
Depositor and delivered to or retained by the Trustee, detailing a reasonable
basis for such determination. The Trustee and Fiscal Agent shall each be
entitled to rely conclusively upon any such Officer's Certificate of the Master
Servicer or the Special Servicer.
"Nonrecoverable Servicing Advance" means any Servicing Advance previously
made or proposed to be made in respect of a Mortgage Loan or REO Property which,
in the reasonable and good faith judgment of the Master Servicer, the Special
Servicer or, if applicable, the Trustee or the Fiscal Agent, will not be
ultimately recoverable (together with Advance Interest thereon) from late
payments, Insurance Proceeds, Condemnation Proceeds, Liquidation Proceeds, or
any other recovery on or in respect of such Mortgage Loan or REO Property. The
determination by the Master Servicer, the Special Servicer or, if applicable,
the Trustee or the Fiscal Agent that it has made a Nonrecoverable Servicing
Advance or that any proposed Servicing Advance, if made, would constitute a
Nonrecoverable Servicing Advance, shall be evidenced by an Officer's Certificate
delivered to the Depositor and delivered to or retained by the Trustee,
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detailing a reasonable basis for such determination. The Trustee and Fiscal
Agent shall each be entitled to rely conclusively upon any such Officer's
Certificate of the Master Servicer.
"Non-Registered Certificate" means unless and until registered under the
Securities Act, any Class F, Class G, Class H, Class J or Residual Certificate.
"Officer's Certificate" means (x) in the case of the Depositor, a
certificate signed by one or more of the Chairman of the Board, any Vice
Chairman, the President, or any Senior Vice President, Vice President or
Assistant Vice President, and by one or more of the Treasurer, any Assistant
Treasurer, the Secretary or any Assistant Secretary of the Depositor, or (y) in
the case of the Master Servicer and the Special Servicer, a certificate signed
by any of the officers referred to above or an employee thereof designated as a
Servicing Officer or Special Servicing Officer pursuant to this Agreement, and
(z) in the case of the Trustee, a certificate signed by a Responsible Officer.
"Operating Adviser" shall have the meaning specified in Section 8.32.
"Operating Adviser Votes" shall mean the votes cast at a duly called
meeting by the Holders of the Controlling Class to elect an Operating Adviser.
"Opinion of Counsel" means a written opinion of counsel addressed to the
Trustee, reasonably acceptable in form and substance to the Trustee, and who may
be in-house or outside counsel to the party required to deliver such opinion but
who must be Independent outside counsel with respect to any such opinion of
counsel concerning the taxation, or status as a REMIC for tax purposes, of the
Trust or any REMIC Pool.
"OTS" means the Office of Thrift Supervision or any successor thereto.
"Ownership Interest" means, as to any Certificate, any ownership or
security interest in such Certificate as the Holder thereof and any other
interest therein, whether direct or indirect, legal or beneficial, as owner or
as pledgee.
"P&I Advance" means, as to any Mortgage Loan (including, without
limitation, any REO Mortgage Loan), any advance in respect of delinquent
principal and/or interest made by the Master Servicer pursuant to Section 4.1
(or any similar advance made by the Trustee or the Fiscal Agent pursuant to
Section 4.3).
"P&I Advance Date" means, with respect to any Distribution Date, the
Business Day preceding such Distribution Date.
"Participant" means a broker, dealer, bank, other financial institution or
other Person for whom the Clearing Agency effects book-entry transfers and
pledges of securities deposited with the Clearing Agency.
"Pass-Through Entity" means any of (a) a regulated investment company
described in Section 851 of the Code, a real estate investment trust described
in Section 856 of the Code,
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a common trust fund or an organization described in Section 1381(a) of the Code,
(b) any partnership, trust or estate as such terms are defined in the Code or
(c) any Person holding a Residual Certificate as nominee for another Person.
"Pass-Through Rate": means with respect to:
(1) the Class A-1A Certificates, the Class A-1B Certificates, the Class
A-1C 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 and
the Class J Certificates, for any Distribution Date, the respective
fixed rates per annum specified as such in the Preliminary Statement;
and
(2) the Class A-2 Certificates, (a) for the initial Distribution Date,
5.91734% per annum, and (b) for any subsequent Distribution Date, the
lesser of (i) LIBOR for such Distribution Date, plus 0.39%, and (ii)
the REMIC II Remittance Rate applicable to REMIC II Regular Interest
LG2 for such Distribution Rate (or, if the Uncertified Principal
Balance of REMIC II Regular Interest LG2 immediately prior to such
Distribution Date is zero, 12.00% per annum);
(3) the Class IO-1 Certificates, for any Distribution Date, a rate per
annum equal to the excess, if any, of (i) the weighted average of the
REMIC II Remittance Rates (or, in the case of REMIC II Regular
Interest LG2, the Equivalent 30/360 Rate) applicable to REMIC II
Regular Interest LG1 and REMIC II Regular Interest LG2 for such
Distribution Date (weighted on the basis of the respective
Uncertificated Principal Balances of such REMIC II Regular Interests
immediately prior to such Distribution Date), over (ii) the weighted
average of the respective REMIC II Remittance Rates (or, in the case
of REMIC II Regular Interest A-2, the Equivalent 30/360 Rate)
applicable to REMIC II Regular Interest A-1A, REMIC II Regular
Interest A-1B, REMIC II Regular Interest A-1C, REMIC II Regular
Interest A-2, REMIC II Regular Interest B, REMIC II Regular Interest
C, REMIC II Regular Interest D, REMIC II Regular Interest E, REMIC II
Regular Interest F, REMIC II Regular Interest G, REMIC II Regular
Interest H and REMIC II Regular Interest J for such Distribution Date
(weighted on the basis of the respective Uncertificated Principal
Balances of such REMIC II Regular Interests immediately prior to such
Distribution Date); and
(4) the Class IO-2 Certificates, for any Distribution Date, a rate per
annum equal to the REMIC II Remittance Rate applicable to REMIC II
Regular Interest IO-2 for such Distribution Date.
"Payment Adjustment Date" means, with respect to each Adjustable Rate
Mortgage Loan (including without limitation any such Mortgage Loan that is an
REO Mortgage Loan), any date on which the related Monthly Payment is subject to
adjustment pursuant to the
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related Mortgage Note.
"Payment Priority" means, with respect to any Class of Certificates, the
priority of the Holders thereof in respect of the Holders of the other Classes
of Certificates to receive distributions out of the Available Distribution
Amount for any Distribution Date. The Payment Priority of the respective Classes
of Certificates shall be, in descending order, as follows: first, the respective
Classes of Senior Certificates, pro rata; second, the Class B Certificates;
third, the Class C Certificates; fourth, the Class D Certificates; fifth, the
Class E Certificates; sixth, the Class F Certificates; seventh, the Class G
Certificates; eighth, the Class H Certificates; ninth, the Class J Certificates;
and last, the respective classes of Residual Certificates.
"Penalty Charges" means, with respect to any Mortgage Loan (including
without limitation an REO Mortgage Loan), any amounts collected thereon that
represent Late Fees or Default Interest.
"Percentage Interest" means, with respect to any REMIC III Regular
Certificate, the portion of the relevant Class evidenced by such Certificate,
expressed as a percentage, the numerator of which is the Certificate Principal
Balance or the Certificate Notional Amount, as the case may be, of such
Certificate as of the Closing Date, as specified on the face thereof, and the
denominator of which is the initial Class Principal Balance or the initial Class
Notional Amount, as the case may be, of the relevant Class as of the Closing
Date. With respect to a Residual Certificate, the percentage interest in
distributions to be made with respect to the relevant Class, as stated on the
face of such Certificate.
"Permitted Transferee" means any Transferee other than a Disqualified
Organization.
"Person" means any individual, corporation, partnership, limited liability
company joint venture, association, joint-stock company, trust, unincorporated
organization or government or any agency or political subdivision thereof.
"Plan" has the meaning set forth in Section 3.3(d).
"Plan Asset Regulations" means the Department of Labor regulations set
forth in 29 C.F.R. ss. 2510.3-101.
"Prepayment Assumption" means a CPR of 5%, applied to each Mortgage Loan
during any period that the related Mortgagor is permitted to make voluntary
Principal Prepayments without a Prepayment Premium calculated on the basis of a
yield maintenance formula used for determining the accrual of original issue
discount, market discount and premium, if any, on the REMIC I Regular Interests,
the REMIC II Regular Interests and the Certificates for federal income tax
purposes.
"Prepayment Interest Excess" means, with respect to any Mortgage Loan that
was subject to a Principal Prepayment in full or in part during any Collection
Period, which Principal Prepayment was applied to such Mortgage Loan following
such Mortgage Loan's Due Date in
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such Collection Period, the amount of interest (net of related Master Servicing
Fees) accrued on the amount of such Principal Prepayment during the period from
and after such Due Date to but not including the date such Principal Prepayment
was applied to such Mortgage Loan, to the extent actually collected from the
related Mortgagor (without regard to any Prepayment Premium that may have been
collected).
"Prepayment Interest Shortfall" means, with respect to any Mortgage Loan
that was subject to a Principal Prepayment in full or in part during any
Collection Period, which Principal Prepayment was applied to such Mortgage Loan
prior to such Mortgage Loan's Due Date in such Collection Period, the amount of
interest that would have accrued at the related Net Mortgage Rate on the amount
of such Principal Prepayment during the period commencing on the date as of
which such Principal Prepayment was applied to such Mortgage Loan and ending on
the day immediately preceding such Due Date, inclusive, to the extent not
collected from the related Mortgagor (without regard to any Prepayment Premium
that may have been collected).
"Prepayment Premium" means any premium, penalty or fee paid or payable, as
the context requires, by a Mortgagor in connection with a Principal Prepayment
on, or other early collection of principal of, a Mortgage Loan (including,
without limitation, an REO Mortgage Loan).
"Primary Servicing Office" means, with respect to each of the Master
Servicer and the Special Servicer, the office thereof primarily responsible for
performing its respective duties under this Agreement; initially located in
Illinois, in the case of the Master Servicer, and California, in the case of the
Special Servicer.
"Principal Balance Certificates" means, collectively, the REMIC III Regular
Certificates other than the Interest Only Certificates.
"Principal Distribution Amount" means, with respect to either Loan Group
for any Distribution Date, the aggregate of (i) the Current Principal
Distribution Amount with respect to such Loan Group for such Distribution Date,
and (ii) if such Distribution Date is subsequent to the initial Distribution
Date, the excess, if any, of the Principal Distribution Amount with respect to
such Loan Group for the preceding Distribution Date, over the aggregate
distributions of principal made on the Principal Balance Certificates in respect
of such Principal Distribution Amount on the preceding Distribution Date.
"Principal Prepayment" means any payment of principal made by the Mortgagor
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 scheduled
interest due on any date or dates in any month or months subsequent to the month
of prepayment.
"Proposed Plan" has the meaning set forth in Section 8.20.
"Prospective Investor" means any prospective purchaser of a Certificate or,
in the case of a Book-Entry Certificate, of a beneficial ownership interest
therein.
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"Prospectus" means the prospectus dated March 20, 1997, as supplemented by
the prospectus supplement dated March 20, 1997 (the "Prospectus Supplement"),
relating to the offering of the Registered Certificates.
"Prospectus Supplement" has the meaning set forth in the definition of
Prospectus.
"Purchase Price" means, with respect to any Mortgage Loan (other than an
REO Mortgage Loan), a price equal to the outstanding principal balance of such
Mortgage Loan as of the date of purchase, together with (a) all accrued and
unpaid interest on such Mortgage Loan at the related Mortgage Rate in effect
from time to time to but not including the Due Date in the Collection Period of
purchase, (b) all related unreimbursed Servicing Advances, and (c) if such
Mortgage Loan is being purchased by a Seller pursuant to Section 6 of the
related Mortgage Loan Purchase Agreement, an Additional Warranting Party
pursuant to the related Additional Warranty Agreement or the Conti Guarantor
pursuant to the Conti Guaranty Agreement, all expenses reasonably incurred or to
be incurred by the Master Servicer (unless such Seller is acting as Master
Servicer), the Depositor and the Trustee in respect of the Breach or Document
Defect giving rise to the repurchase obligation. With respect to any REO
Property, the amount calculated in accordance with the preceding sentence in
respect of the related REO Mortgage Loan.
"QIB" means a qualified institutional buyer within the meaning of Rule 144A
under the Securities Act.
"Qualified Appraiser" means an Independent licensed MAI-designated
appraiser.
"Qualified Insurer" means an insurance company or security or bonding
company duly qualified as such under the laws of the relevant jurisdiction and
duly authorized and licensed in such jurisdiction to transact the applicable
insurance business and to write the insurance provided.
"Qualified Mortgage" means a Mortgage Loan that is a "qualified mortgage"
within the meaning of Section 860G(a)(3) of the Code (but without regard to the
rule in Treasury Regulation Section 1.860G-2(f)(2) that treats a defective
obligation as a qualified mortgage, or any substantially similar successor
provision) and applicable Treasury Regulations promulgated pursuant thereto.
"Qualifying Substitute Mortgage Loan" means, in the case of a Mortgage Loan
substituted for a Deleted Mortgage Loan, subject to the last sentence of this
definition, a Mortgage Loan which, on the date of substitution, (i) has a
principal balance, after deduction of the principal portion of the Monthly
Payment due in the month of substitution, not in excess of the Stated Principal
Balance of the Deleted Mortgage Loan; (ii) is accruing interest at a rate of
interest at least equal to that of the Deleted Mortgage Loan; (iii) has a fixed
Mortgage Rate if the Deleted Mortgage Loan is a Fixed Rate Mortgage Loan and has
an adjustable Mortgage Rate (and also has the same Index, Gross Margin, Interest
Rate Adjustment Dates and Payment Adjustment Dates as the Deleted Mortgage Loan)
if the Deleted Mortgage Loan is an Adjustable Rate Mortgage Loan; (iv) is
accruing interest on the same basis (for example, a 360-day year consisting of
twelve 30-day months) as the Deleted Mortgage Loan; (v) has a remaining term to
stated maturity not
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greater than, and not more than two years less than, that of the Deleted
Mortgage Loan; (vi) has an original Loan-to-Value Ratio not higher than that of
the Deleted Mortgage Loan and a current Loan-to-Value Ratio (equal to the
principal balance on the date of substitution divided by its current Appraised
Value) not higher than the then current Loan-to-Value Ratio of the Deleted
Mortgage Loan; (vii) will comply with all of the representations and warranties
relating to Mortgage Loans set forth in the related Mortgage Loan Purchase
Agreement, as of the date of substitution; (viii) has an Environmental
Assessment relating to the related Mortgaged Property in its Servicing File; and
(ix) as to which the Trustee has received an Opinion of Counsel, at the related
Seller's expense, that such Mortgage Loan is a "qualified replacement mortgage"
within the meaning of Section 860G(a)(4) of the Code; provided that no Mortgage
Loan may have a Maturity Date after the date three years prior to the Final
Rated Distribution Date, and provided, further, that no such Mortgage Loan shall
be substituted for a Deleted Mortgage Loan unless Rating Agency Confirmation is
obtained. In the event that either one mortgage loan is substituted for more
than one Deleted Mortgage Loan or more than one mortgage loan is substituted for
one or more Deleted Mortgage Loans, then (a) the principal balance referred to
in clause (i) above shall be determined on the basis of aggregate principal
balances and (b) the rates referred to in clauses (ii) and (iii) above and the
remaining term to stated maturity referred to in clause (v) above shall be
determined on a weighted average basis. Whenever a Qualifying Substitute
Mortgage Loan is substituted for a Deleted Mortgage Loan pursuant to this
Agreement, the party effecting such substitution shall certify that such
Mortgage Loan meets all of the requirements of this definition and shall send
such certification to the Trustee. Notwithstanding the foregoing, in the case of
any substitution to be effected by an Additional Warranting Party under the
related Additional Warranty Agreement, "Qualifying Substitute Mortgage Loan"
shall mean any mortgage loan acceptable as a Replacement Mortgage Loan under
such Additional Warranty Agreement; provided that no such mortgage loan shall be
substituted for a Deleted Mortgage Loan if it would result in an Adverse REMIC
Event in respect of any REMIC Pool or if the maturity date of such mortgage loan
is beyond the date that is three years prior to the Final Rated Distribution
Date; and provided, further, that no such mortgage loan shall be substituted for
a Deleted Mortgage Loan unless Rating Agency Confirmation is obtained.
"Rating Agencies" means DCR and Moody's.
"Rating Agency Confirmation" means, with respect to any matter, where
required under this Agreement, confirmation in writing by each Rating Agency
that a proposed action, failure to act, or other event specified herein will not
in and of itself result in the withdrawal, downgrade, or qualification of the
rating assigned by such Rating Agency to any Class of Certificates then rated by
such Rating Agency.
"Realized Loss" means, with respect to each defaulted Mortgage Loan as to
which a Final Recovery Determination has been made, or with respect to any REO
Mortgage Loan as to which a Final Recovery Determination has been made as to the
related REO Property, an amount (not less than zero) equal to (i) the unpaid
principal balance of such Mortgage Loan (or, in the case of an REO Property, the
related REO Mortgage Loan) as of the commencement of the Collection Period in
which the Final Recovery Determination was made, plus (ii) all accrued but
unpaid interest on such Mortgage Loan (or, in the case of an REO Property, the
related REO Mortgage Loan) at the related Mortgage Rate to but not including the
Due Date in the Collection
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Period in which the Final Recovery Determination was made, in any event
determined without taking into account the amounts described in subclause (iv)
of this sentence, plus (iii) any related unreimbursed Servicing Advances as of
the commencement of the Collection Period in which the Final Recovery
Determination was made, together with any new related Servicing Advances made
during such Collection Period, minus (iv) all payments and proceeds, if any,
received in respect of such Mortgage Loan or REO Property, as the case may be,
during the Collection Period in which such Final Recovery Determination was made
(net of any related Liquidation Expenses paid therefrom).
With respect to any Mortgage Loan as to which any portion of the
outstanding principal or accrued interest owed thereunder was forgiven in
connection with a bankruptcy or similar proceeding involving the related
Mortgagor or a modification, waiver or amendment of such Mortgage Loan granted
or agreed to by the Master Servicer or Special Servicer pursuant to Section
8.18, the amount of such principal or interest so forgiven.
With respect to any Mortgage Loan as to which the Mortgage Rate thereon has
been permanently reduced for any period in connection with a bankruptcy or
similar proceeding involving the related Mortgagor or a modification, waiver or
amendment of such Mortgage Loan granted or agreed to by the Master Servicer or
Special Servicer pursuant to Section 8.18, the amount of the consequent
reduction in the interest portion of each successive Monthly Payment due
thereon. Each such Realized Loss shall be deemed to have been incurred on the
Due Date for each affected Monthly Payment.
"Record Date" means, with respect to any Class of Certificates for any
Distribution Date, the last Business Day of the calendar month immediately
preceding the month in which such Distribution Date occurs.
"Reference Banks" has the meaning set forth in Section 1.3.
"Registered Certificates" means, collectively, the Class IO-1, Class IO-2,
Class A-1A, Class A-1B, Class A-1C, Class A-2, Class B, Class C, Class D and
Class E Certificates.
"REMIC" means a real estate mortgage investment conduit within the meaning
of Section 860D of the Code.
"REMIC I" means the segregated pool of assets consisting of the Mortgage
Loans, such amounts as shall from time to time be held in the Collection Account
and the Distribution Account, the Insurance Policies and any REO Properties, for
which a REMIC election is to be made pursuant to Section 12.1(a) hereof.
"REMIC I Interests" means, collectively, the REMIC I Regular Interests and
the Class R-I Certificates.
"REMIC I Regular Interest" means, with respect to each Mortgage Loan
(including, without limitation, each REO Mortgage Loan), the separate
non-certificated beneficial ownership interest in REMIC I issued in respect of
such Mortgage Loan hereunder and designated
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as a "regular interest" in REMIC I. Each REMIC I Regular Interest shall accrue
interest at the related REMIC I Remittance Rate and shall be entitled to
distributions of principal, subject to the terms and conditions hereof, in an
aggregate amount equal to its initial Uncertificated Principal Balance (which
shall equal the Cut-off Date Principal Balance of the related Mortgage Loan).
The designation for each REMIC I Regular Interest shall be the loan number for
the related Mortgage Loan set forth in the Mortgage Loan Schedule as of the
Closing Date. If a Replacement Mortgage Loan or Loans are substituted for any
Deleted Mortgage Loan, the REMIC I Regular Interest that related to the Deleted
Mortgage Loan shall thereafter relate to such Replacement Mortgage Loan(s).
"REMIC I Remittance Rate" means, with respect to any REMIC I Regular
Interest for any Distribution Date, a rate per annum equal to the Net Mortgage
Rate in effect for the related Mortgage Loan (including without limitation an
REO Mortgage Loan) as of, in the case of a Fixed Rate Mortgage Loan, the Closing
Date and, in the case of an Adjustable Rate Mortgage Loan, the commencement of
the related Collection Period (provided that such Net Mortgage Rate for an
Adjustable Rate Mortgage Loan shall be calculated in accordance with the terms
of the related Mortgage Note in effect as of the Closing Date). If any Mortgage
Loan included in the Trust Fund as of the Closing Date is replaced by a
Replacement Mortgage Loan or Loans, the REMIC I Remittance Rate for the related
REMIC I Regular Interest shall still be calculated in accordance with the
preceding sentence based on the Net Mortgage Rate for the Deleted Mortgage Loan.
"REMIC II" means the segregated pool of assets consisting of the REMIC I
Regular Interests for which a REMIC election is to be made pursuant to Section
12.1(a) hereof.
"REMIC II Distribution Amount" has the meaning set forth in Section 6.2(d).
"REMIC II Interests" means, collectively, the REMIC II Regular Interests
and the Class R-II Certificates.
"REMIC II Regular Interest" Any of the 15 separate non-certificated
beneficial ownership interests in REMIC II issued hereunder and designated as a
"regular interest" in REMIC II. Each REMIC II Regular Interest shall accrue
interest at the related REMIC II Remittance Rate in effect from time to time
and, except for REMIC II Regular Interest IO-2, shall be entitled to
distributions of principal, subject to the terms and conditions hereof, in an
aggregate amount equal to its initial Uncertificated Principal Balance as set
forth in the Preliminary Statement hereto. The designations for the respective
REMIC II Regular Interests are set forth in the Preliminary Statement hereto.
"REMIC II Remittance Rate" means with respect to:
(a) REMIC II Regular Interest LG1, for any Distribution Date, the
weighted average of the REMIC I Remittance Rates (or, in the case of
Non-30/360 REMIC I Regular Interests, the Equivalent 30/360 Rates) for the
REMIC I Regular Interests relating to the Group 1 Loans for such
Distribution Date (weighted on the basis of the respective Uncertificated
Principal Balances of such REMIC I Regular Interests immediately prior to
such Distribution
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Date);
(b) REMIC II Regular Interest LG2, (i) for the initial Distribution
Date, 5.91734% per annum, and (ii) for any subsequent Distribution Date,
the lesser of (A) LIBOR for such Distribution Date, plus 0.39%, and (B) the
weighted average of the REMIC I Remittance Rates (or, in the case of 30/360
REMIC I Regular Interests, the Equivalent Actual/360 Rates) for the REMIC I
Regular Interests relating to the Group 2 Loans for such Distribution Date
(weighted on the basis of the respective Uncertificated Principal Balances
of such REMIC I Regular Interests immediately prior to such Distribution
Date);
(c) REMIC II Regular Interest IO-2, for any Distribution Date, the
excess, if any, of (i) the weighted average of the REMIC I Remittance Rates
(or, in the case of Non-30/360 REMIC I Regular Interests, the Equivalent
30/360 Rates) for the REMIC I Regular Interests relating to the Group 2
Loans for such Distribution Date (weighted on the basis of the respective
Uncertificated Principal Balances of such REMIC I Regular Interests
immediately prior to such Distribution Date), over (ii) the REMIC II
Remittance Rate (converted to the Equivalent 30/360 Rate) applicable to
REMIC II Regular Interest LG2 for such Distribution Date;
(d) REMIC II Regular Interest A-2, (i) for the initial Distribution
Date, 5.91734% per annum, and (ii) for any subsequent Distribution Date,
the lesser of (A) LIBOR for such Distribution Date, plus 0.39%, and (B) the
weighted average of the REMIC I Remittance Rates ( or, in the case of
30/360 REMIC I Regular Interests, the Equivalent Actual/360 Rates) for the
REMIC I Regular Interests relating to the Group 2 Loans for such
Distribution Date (weighted on the basis of the respective Uncertificated
Principal Balances of such REMIC I Regular Interests immediately prior to
such Distribution Date) or, if the aggregate Uncertificated Principal
Balance of such REMIC I Regular Interests was reduced to zero prior to such
Distribution Date, 12.00% per annum; and
(e) each of REMIC II Regular Interests A-1A, A-1B, A-1C, B, C, D, E,
F, G, H and J for any Distribution Date, the respective fixed rates per
annum specified as such in the Preliminary Statement.
"REMIC III" means the segregated pool of assets consisting of all of the
REMIC II Regular Interests, with respect to which a separate REMIC election is
to be made pursuant to Section 12.1(a) hereof.
"REMIC III Certificate" means any Certificate, other than a Class R-I or
Class R-II Certificate.
"REMIC III Distribution Amount" has the meaning set forth in Section
6.3(d).
"REMIC III Regular Certificate" means any REMIC III Certificate, other than
a Class R-III Certificate.
"REMIC Pool" means each of the three segregated pools of assets designated
as a REMIC pursuant to Section 12.1(a) hereof.
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"REMIC Provisions" means the provisions of the federal income tax law
relating to real estate mortgage investment conduits, which appear at Sections
860A through 860G of Subchapter M of Chapter 1 of the Code, and related
provisions, and regulations and rulings promulgated thereunder, as the foregoing
may be in effect from time to time and taking account, as appropriate, of any
proposed legislation which, as proposed, would have an effective date prior to
enactment thereof and any proposed regulations.
"Rents from Real Property" means, with respect to any REO Property, income
of the character described in Section 856(d) of the Code.
"REO Acquisition" means the acquisition of any REO Property pursuant to
Section 8.7.
"REO Disposition" means the sale or other disposition of any REO Property
pursuant to Section 8.31.
"REO Extension" has the meaning set forth in Section 8.19(a).
"REO Income" means, with respect to any REO Property for any Collection
Period, all income received in connection with such REO Property during such
period.
"REO Mortgage Loan" means a Mortgage Loan as to which the related Mortgaged
Property is an REO Property.
"REO Property" means a Mortgaged Property acquired by the Trust through
foreclosure, deed-in-lieu of foreclosure, abandonment or reclamation from
bankruptcy in connection with a Defaulted Mortgage Loan or otherwise treated as
foreclosure property under the REMIC Provisions.
"REO Tax" has the meaning set forth in Section 8.20(a).
"Replacement Mortgage Loan" means any Qualifying Substitute Mortgage Loan
that is substituted for one or more Deleted Mortgage Loans.
"Report Date" means the fourth Business Day before the related Distribution
Date.
"Repurchase Proceeds" means amounts paid by any Seller under the related
Mortgage Loan Purchase Agreement, by any Additional Warranting Party under the
related Additional Warranty Agreement (and, in connection therewith, if
applicable, by the Depositor hereunder), or by the Conti Guarantor under the
Conti Guaranty Agreement, in connection with the repurchase of any Mortgage Loan
as contemplated by Section 2.3.
"Request for Release" means a request for release of certain documents
relating to the Mortgage Loans, a form of which is attached hereto as Exhibit C.
"Required Appraisal Loan" means any Mortgage Loan (including without
limitation any REO Mortgage Loan) as to which an Appraisal Event has occurred
and is
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continuing.
"Required Insurance Policy" means with respect to any Mortgaged Property,
any insurance policy that is required to be maintained from time to time under
this Agreement in respect of such Mortgaged Property.
"Reserve Account" means the account or accounts created and maintained
pursuant to Section 8.3(d).
"Reserve Funds" means, with respect to any Mortgage Loan, any cash amounts
or instruments convertible into cash delivered by the related Mortgagor to be
held in escrow by or on behalf of the Mortgagee representing reserves for
repairs, replacements, capital improvements, environmental testing and
remediation and/or similar type items with respect to the related Mortgaged
Property.
"Residual Certificates" means, with respect to REMIC I, the Class R-I
Certificates, with respect to REMIC II, the Class R-II Certificates and, with
respect to REMIC III, the Class R-III Certificates.
"Responsible Officer" means, when used with respect to the initial Trustee,
any officer assigned to the Asset Backed Securities Trust Services Group of its
Corporate Trust Department and when used with respect to any successor Trustee,
any Vice President, Assistant Vice President, corporate trust officer or any
assistant corporate trust officer.
"Reverse Sequential Order" means sequentially to the Class J, Class H,
Class G, Class F, Class E, Class D, Class C, Class B and Class A Certificates.
"Rule 144A" means Rule 144A under the Securities Act.
"Scheduled Principal Balance" means, with respect to any Mortgage Loan
(including without limitation an REO Mortgage Loan), as of any date of
determination, the unpaid principal balance thereof as of the Cut-off Date (or,
in the case of a Replacement Mortgage Loan, as of the related date of
substitution), after application of all principal payments due on or before the
Cut-off Date (or, in the case of a Replacement Mortgage Loan, the related date
of substitution), whether or not received, reduced by:
(a) the principal portions of all Monthly Payments (other than Balloon
Payments) and any Assumed Monthly Payments due or deemed due, as the case
may be, in respect of such Mortgage Loan on a Due Date subsequent to the
Cut-off Date (or, in the case of a Replacement Mortgage Loan, subsequent to
the related date of substitution) and coinciding with or preceding such
date of determination, whether or not received;
(b) that portion of all payments (including without limitation
Principal Prepayments and Balloon Payments), Liquidation Proceeds,
Condemnation Proceeds, Insurance Proceeds, Repurchase Proceeds, payments of
Substitution
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Shortfall Amounts, REO Income and other collections that were received on
or in respect of such Mortgage Loan (or any related REO Property)
subsequent to the Cut-off Date (or, in the case of a Replacement Mortgage
Loan, subsequent to the related date of substitution) and on or before such
date of determination and that were identified and applied by the Master
Servicer in accordance with Section 1.2 as payments or other recoveries of
principal of such Mortgage Loan, in each case net of any portion of such
amounts that represents (i) a payment or other recovery of the principal
portion of any Monthly Payment (other than a Balloon Payment) due, or of
the principal portion of any Assumed Monthly Payment deemed due, in respect
of such Mortgage Loan on a Due Date subsequent to the Cut-off Date (or, in
the case of a Replacement Mortgage Loan, subsequent to the related date of
substitution) and coinciding with or preceding such date of determination
or (ii) an early payment (other than in the form of a Principal Prepayment)
of the principal portion of any Monthly Payment due in respect of such
Mortgage Loan on a Due Date subsequent to the end of the related Collection
Period; and
(c) the principal portion of any Realized Loss incurred in respect of
such Mortgage Loan subsequent to the Cut-off Date and on or before such
date of determination;
provided that, notwithstanding the foregoing, if a Liquidation Event occurs in
respect of such Mortgage Loan (or any related REO Property), then the Scheduled
Principal Balance of such Mortgage Loan shall thereafter be zero.
"Securities Act" means the Securities Act of 1933, as amended.
"Seller" means MSMC, ContiTrade or GMACCM, as the case may be.
"Senior Certificates" means, collectively, the Class A and Class IO
Certificates.
"Servicing Account" means the account or accounts created and maintained
pursuant to Section 8.3(a).
"Servicing Advances" means all customary, reasonable and necessary "out of
pocket" costs and expenses (including attorneys' fees and expenses and fees of
real estate brokers) incurred by the Master Servicer, the Special Servicer or,
if applicable, the Trustee or the Fiscal Agent in connection with the servicing
and administering of (a) a Mortgage Loan in respect of which a default,
delinquency or other unanticipated event has occurred or as to which a default
is imminent or (b) an REO Property, including, but not limited to, the cost of
(i) compliance with the obligations of the Master Servicer and/or the Special
Servicer set forth in Section 8.3(c) and 8.7(c), (ii) the preservation,
restoration and protection of a Mortgaged Property or REO Property, (iii)
obtaining any Insurance Proceeds, Condemnation Proceeds or Liquidation Proceeds
in respect of any Mortgage Loan or REO Property, (iv) any enforcement or
judicial proceedings with respect to a Mortgaged Property, including without
limitation foreclosures and similar proceedings, and (v) the operation,
management, maintenance and liquidation of any REO Property; provided that,
notwithstanding anything to the contrary, "Servicing Advances" shall not include
allocable
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overhead of the Master Servicer or the Special Servicer, such as costs for
office space, office equipment, supplies and related expenses, employee salaries
and related expenses and similar internal costs and expenses, or costs incurred
by either such party in connection with its purchase of any Mortgage Loan or REO
Property pursuant to any provision of this Agreement. All Emergency Advances
made by the Special Servicer hereunder shall be considered "Servicing Advances"
for the purposes hereof.
"Servicing Fees" means, with respect to each Mortgage Loan (including
without limitation each REO Mortgage Loan), the Master Servicing Fee and, if
applicable, the Special Servicing Fee.
"Servicing File" means, collectively as to any Mortgage Loan, any
documents, other than documents required to be part of the related Mortgage
File, in the possession of the Master Servicer or Special Servicer and relating
to the origination and servicing of such Mortgage Loan, including without
limitation a closing binder for such Mortgage Loan and, in each case if and to
the extent available, any appraisal, environmental report, engineering report,
operating statements, rent rolls and copies of major leases.
"Servicing Officer" means any officer or employee of the Master Servicer
involved in, or responsible for, the administration and servicing of the
Mortgage Loans whose name and specimen signature appear on a list of servicing
officers or employees furnished to the Trustee by the Master Servicer and signed
by an officer of the Master Servicer, as such list may from time to time be
amended.
"Servicing Return Date" means, with respect to any Corrected Mortgage Loan,
the date that servicing thereof is returned by the Special Servicer to the
Master Servicer pursuant to Section 8.1(c).
"Servicing Standard" has the meaning set forth in Section 8.1(a).
"Servicing Transfer Event" means, with respect to any Mortgage Loan, the
occurrence of any of the events described in clauses (a) through (h) of the
definition of "Specially Serviced Mortgage Loan".
"Special Servicer" means GMACCM or any successor Special Servicer as herein
provided.
"Special Servicer Monthly Reports" mean the reports substantially in the
form of Exhibit F-2 attached hereto.
"Special Servicer Standby Fee" means, with respect to each Mortgage Loan
(including without limitation each REO Mortgage Loan), the fee designated as
such and payable to the Special Servicer pursuant to Section 8.10(b).
"Special Servicer Standby Fee Rate" means, with respect to each Mortgage
Loan (including without limitation each REO Mortgage Loan), 0.005% per annum.
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"Special Servicing Fee" means, with respect to each Specially Serviced
Mortgage Loan and REO Mortgage Loan, the fee designated as such and payable to
the Special Servicer pursuant to Section 8.10(b).
"Special Servicing Fee Rate" means, with respect to each Specially Serviced
Mortgage Loan and REO Mortgage Loan, 0.25% per annum.
"Special Servicing Officer" means any officer or employee of the Special
Servicer involved in, or responsible for, the administration and servicing of
the Specially Serviced Mortgage Loans whose name and specimen signature appear
on a list of servicing officers or employees furnished to the Trustee and the
Master Servicer by the Special Servicer signed by an officer of the Special
Servicer, as such list may from time to time be amended.
"Specially Serviced Asset Report" means the report prepared by the Special
Servicer substantially with the information set forth in Exhibit F-3 attached
hereto.
"Specially Serviced Mortgage Loan" means any Mortgage Loan as to which any
of the following events has occurred:
(a) the related Mortgagor has failed to make when due any Balloon
Payment, which failure has continued unremedied for 30 days; or
(b) the related Mortgagor has failed to make when due any Monthly
Payment (other than a Balloon Payment) or any other payment required under
the related Mortgage Note or the related Mortgage, which failure continues
unremedied for 60 days; or
(c) the Master Servicer has determined, in its good faith and
reasonable judgment, that a default in the making of a Monthly Payment or
any other payment required under the related Mortgage Note or the related
Mortgage is likely to occur within 30 days and is likely to remain
unremedied for at least 60 days or, in the case of a Balloon Payment, for
at least 30 days; or
(d) there shall have occurred a default, other than as described in
clause (a) or (b) above, that (in the Master Servicer's good faith and
reasonable judgment) materially impairs the value of the related Mortgaged
Property as security for the Mortgage Loan or otherwise materially and
adversely affects the interests of Certificateholders, which default has
continued unremedied for the applicable grace period under the terms of the
Mortgage Loan (or, if no grace period is specified, 60 days); or
(e) 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 or
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 related Mortgagor and such decree or
order shall have remained in force undischarged or unstayed for a period of
60 days; or
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(f) the related Mortgagor shall have consented to the appointment of a
conservator or receiver or liquidator in any insolvency, readjustment of
debt, marshaling of assets and liabilities or similar proceedings of or
relating to such Mortgagor or of or relating to all or substantially all of
its property; or
(g) the related Mortgagor shall have admitted in writing its inability
to pay its debts generally as they become due, filed a petition to take
advantage of any applicable insolvency or reorganization statute, made an
assignment for the benefit of its creditors, or voluntarily suspended
payment of its obligations; or
(h) the Master Servicer shall have received notice of the commencement
of foreclosure or similar proceedings with respect to the related Mortgaged
Property;
provided that a Mortgage Loan will cease to be a Specially Serviced Mortgage
Loan when a Liquidation Event has occurred in respect of such Mortgage Loan,
when the related Mortgaged Property has become an REO Property, or at such time
as such of the following as are applicable occur with respect to the
circumstances identified above that caused the Mortgage Loan to be characterized
as a Specially Serviced Mortgage Loan (and provided that no other Servicing
Transfer Event then exists):
(w) with respect to the circumstances described in clauses (a) and (b)
above, the related Mortgagor has made three consecutive full and
timely Monthly Payments under the terms of such Mortgage Loan (as such
terms may be changed or modified in connection with a bankruptcy or
similar proceeding involving the related Mortgagor or by reason of a
modification, waiver or amendment granted or agreed to by the Special
Servicer pursuant to Section 8.18);
(x) with respect to the circumstances described in clauses (c), (e), (f)
and (g) above, such circumstances cease to exist in the good faith and
reasonable judgment of the Special Servicer;
(y) with respect to the circumstances described in clause (d) above, such
default is cured; and
(z) with respect to the circumstances described in clause (h) above, such
proceedings are terminated.
"Startup Day" means, with respect to each of REMIC I, REMIC II and REMIC
III, the day designated as such Section 12.1 (b).
"Stated Maturity Date" means, with respect to any Mortgage Loan, the Due
Date on which the last payment of principal is due and payable under the terms
of the related Mortgage Note as in effect on the Closing Date, without regard to
any change in or modification of such terms in connection with a bankruptcy or
similar proceeding involving the related Mortgagor or a modification, waiver or
amendment of such Mortgage Loan granted or agreed to by the Master Servicer or
Special Servicer pursuant to Section 8.18, and without regard to the exercise of
any
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Call Option under such Mortgage Loan.
"Stated Principal Balance" means, with respect to any Mortgage Loan
(including without limitation any REO Mortgage Loan), an amount equal to (a) the
unpaid principal balance of such Mortgage Loan as of the Cut-off Date (or, in
the case of a Replacement Mortgage Loan, as of the related date of
substitution), after application of all payments due on or before such date,
whether or not received, reduced on a cumulative basis on each subsequent
Distribution Date (to not less than zero) by (b) the sum of (i) all payments (or
P&I Advances in lieu thereof) of, and all other collections allocated as
provided in Section 1.2 to, principal of or with respect to such Mortgage Loan
that are (or, if they had not been applied to cover any Additional Trust
Expense, would have been) distributed to Certificateholders on such Distribution
Date, and (ii) the principal portion of any Realized Loss incurred in respect of
such Mortgage Loan during the related Collection Period; provided that,
notwithstanding the foregoing, if a Liquidation Event occurs in respect of such
Mortgage Loan (or any related REO Property), then the "Stated Principal Balance"
of such Mortgage Loan shall be zero commencing as of the Distribution Date in
the Collection Period next following the Collection Period in which such
Liquidation Event occurred.
"Subordinate Certificates" means, collectively, the Class B, Class C, Class
D, Class E, Class F, Class G, Class H and Class J, Certificates.
"Sub-Servicer" means any Person with which the Master Servicer or the
Special Servicer has entered into a Sub-Servicing Agreement.
"Sub-Servicing Agreement" means the written contract between the Master
Servicer or the Special Servicer and any Sub-Servicer relating to servicing and
administration of Mortgage Loans as provided in Section 8.4.
"Substitution Shortfall Amount" means, in connection with the substitution
of one or more Replacement Mortgage Loans for one or more Deleted Mortgage
Loans, the amount, if any, by which the Purchase Price or aggregate Purchase
Price, as the case may be, for such Deleted Mortgage Loan(s) exceeds the initial
Stated Principal Balance or aggregate Stated Principal Balance, as the case may
be, of such Replacement Mortgage Loan(s).
"Tax Matters Person" means the person designated as the "tax matters
person" of the REMIC Pool pursuant to Treasury Regulation Section 1.860F-4(d)
and temporary Treasury Regulations Section 301.6231(a)(7)-1T.
"Tax Returns" means the federal income tax return on Internal Revenue
Service 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 REMIC I, REMIC II and REMIC III due to its
classification as a REMIC under the REMIC Provisions, together with any and all
other information, reports or returns that may be required to be furnished to
the Certificateholders or filed with the Internal Revenue Service or any other
governmental taxing authority under any applicable provisions of federal or
state law.
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"Termination Price" shall have the meaning set forth in Section 10.1(b)
herein.
"30/360 REMIC I Regular Interest" means a REMIC I Regular Interest that
accrues interest on the basis of a 360-day year consisting of twelve 30-day
months,
"Transfer" means any direct or indirect transfer, sale, pledge,
hypothecation, or other form of assignment of any Ownership Interest in a
Certificate.
"Transferee" means any Person who is acquiring by Transfer any Ownership
Interest in a Certificate.
"Transferor" means any Person who is disposing by Transfer any Ownership
Interest in a Certificate.
"Trust" means the trust created pursuant to this Agreement, the assets
which consist of the Mortgage Loans, such amounts as shall from time to time be
held in the Collection Account and the Distribution Account, the Insurance
Policies, any REO Properties and other rights and property referred to in
Section 2.1(a) hereof.
"Trust Fund" means, collectively, all of the assets of the Trust.
"Trustee" means LaSalle National Bank, as Trustee, or its
successor-in-interest, or if any successor trustee or any co-trustee shall be
appointed as herein provided, then Trustee shall also mean such successor
trustee (subject to Section 7.7 hereof) and such co-trustee (subject to Section
7.9 hereof), as the case may be.
"Trustee Fee" means, as to each Mortgage Loan (including without limitation
each REO Mortgage Loan), the monthly fee payable to the Trustee that is
calculated in the same manner as the Master Servicing Fee for such Mortgage Loan
but at the Trustee Fee Rate. The Trustee Fee for each Mortgage Loan shall be
payable to the Trustee by the Master Servicer out of the Master Servicing Fee
for such Mortgage Loan as provided herein.
"Trustee Fee Rate" means 0.006% per annum.
"UCC Financing Statement" means a financing statement executed and filed
pursuant to the Uniform Commercial Code, as in effect in the relevant
jurisdiction, or, in the case of Louisiana, the comparable provisions of
Louisiana law.
"Uncertificated Accrued Interest" means: (i) with respect to any REMIC I
Regular Interest, for any Distribution Date, interest for the related Interest
Accrual Period (calculated on the basis of a 360-day year consisting of twelve
30-day months or, if the related Mortgage Loan accrues interest on a different
basis, on such alternative basis) accrued at the applicable REMIC I Remittance
Rate on the Uncertificated Principal Balance of such REMIC I Regular Interest
immediately prior to such Distribution Date; and (ii) with respect to any REMIC
II Regular Interest, for any Distribution Date, interest for the related
Interest Accrual Period (calculated on the basis of a 360-day year consisting of
twelve 30-day months or, in the case of
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REMIC II Regular Interests LG2 and A-2, on the basis of a 360-day year and the
actual number of days elapsed during the applicable Interest Accrual Period)
accrued at the applicable REMIC II Remittance Rate on the Uncertificated
Principal Balance of such REMIC II Regular Interest immediately prior to such
Distribution Date.
"Uncertificated Distributable Interest" means, with respect to any REMIC I
Regular Interest or REMIC II Regular Interest for any Distribution Date, an
amount equal to: (a) the Uncertificated Accrued Interest in respect of such
REMIC I Regular Interest or REMIC II Regular Interest, as the case may be, for
such Distribution Date; reduced (to not less than zero) by (b) the portion of
any Net Aggregate Prepayment Interest Shortfall for such Distribution Date
allocated to such REMIC I Regular Interest or REMIC II Regular Interest, as the
case may be, as set forth below; and increased by (c) any Uncertificated
Distributable Interest in respect of such REMIC I Regular Interest or REMIC II
Regular Interest, as the case may be, for the immediately preceding Distribution
Date that was not deemed paid on the immediately preceding Distribution Date
pursuant to Section 6.2 or 6.3, as applicable, together with (except in the case
of REMIC II Regular Interest IO-2) one month's interest (calculated on the basis
of a 360-day year consisting of twelve 30-day months or, if Uncertificated
Accrued Interest in respect of such REMIC I Regular Interest or REMIC II Regular
Interest, as the case may be, accrues on an alternative basis, calculated on
such alternative basis) on such unpaid Uncertificated Distributable Interest
(exclusive, in the case of each of REMIC II Regular Interest LG1 and REMIC II
Regular Interest LG2, of the Class IO-1 share thereof) at the REMIC I Remittance
Rate or the REMIC II Remittance Rate, as the case may be, applicable to such
REMIC I Regular Interest or REMIC II Regular Interest, as the case may be, for
the current Distribution Date. The Net Aggregate Prepayment Interest Shortfall
for any Distribution Date shall be allocated: (i) among the respective REMIC I
Regular Interests, pro rata in accordance with the respective amounts of
Uncertificated Accrued Interest with respect thereto for such Distribution Date;
and (ii) among the respective REMIC II Regular Interests, pro rata in accordance
with the respective amounts of Uncertificated Accrued Interest with respect
thereto for such Distribution Date.
"Uncertificated Notional Amount" means the aggregate notional principal
amount on which REMIC II Regular Interest IO-2 accrues interest from time to
time which, as of any date of determination, is equal to the then aggregate
Uncertificated Principal Balance of the REMIC I Regular Interests relating to
the Group 2 Loans.
"Uncertificated Principal Balance" means the principal amount of any REMIC
I Regular Interest or REMIC II Regular Interest (other than REMIC II Regular
Interest IO-2) outstanding as of any date of determination. As of the Closing
Date, the Uncertificated Principal Balance of each REMIC I Regular Interest
shall equal the Cut-off Date Principal Balance of the related Mortgage Loan. On
each Distribution Date, the Uncertificated Principal Balance of each REMIC I
Regular Interest shall be reduced by all distributions of principal deemed to
have been made thereon on such Distribution Date pursuant to Section 6.2 and, if
and to the extent appropriate, shall be further reduced on such Distribution
Date as provided in Section 6.5. As of the Closing Date, the Uncertificated
Principal Balance of each REMIC II Regular Interest (other than REMIC II Regular
Interest IO-2) shall equal the amount set forth in the Preliminary Statement
hereto as its initial Uncertificated Principal Balance. On each Distribution
Date, the Uncertificated Principal Balance of each REMIC II Regular Interest
(other than REMIC II Regular
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Interest IO-2) shall be reduced by all distributions of principal deemed to have
been made thereon on such Distribution Date pursuant to Section 6.3 and, if and
to the extent appropriate, shall be further reduced on such Distribution Date as
provided in Section 6.5.
"Underwritable Cash Flow" means, with respect to any Mortgaged Property or
REO Property, for any twelve month period (or such shorter period calculated on
an annualized basis), the underwritable cash flow amount calculated in
accordance with Exhibit G hereto.
"Underwriter" means Morgan Stanley & Co. Incorporated or its successor in
interest.
"Uninsured Cause" means any cause of damage to property subject to a
Mortgage such that the complete restoration of such property is not fully
reimbursable by the hazard insurance policies or flood insurance policies
required to be maintained pursuant to Section 8.5.
"United States Person" means a citizen or resident of the United States, a
corporation, partnership or other entity created or organized in, or under the
laws of, the United States or any political subdivision thereof, or an estate or
trust whose income from sources without the United States is includible in gross
income for United States federal income tax purposes regardless of its
connection with the conduct of a trade or business within the United States.
"USPAP" means the Uniform Standards of Professional Appraisal Practices.
"Voting Rights" means the voting rights to which the Certificateholders are
entitled hereunder. At all times during the term of this Agreement, 97% of the
Voting Rights shall be allocated among the Holders of the various outstanding
Classes of Principal Balance Certificates in proportion to the respective Class
Principal Balances of their Certificates, 2% of the Voting Rights shall be
allocated among the Holders of the various outstanding Classes of the Interest
Only Certificates in proportion to the respective Class Notional Amounts of
their Certificates, and the remaining Voting Rights shall be allocated equally
among the Holders of the respective Classes of the Residual Certificates. Voting
Rights allocated to a Class of Certificateholders shall be allocated among such
Certificateholders in proportion to the Percentage Interests evidenced by their
respective Certificates.
"Workout Fee" means, with respect to each Corrected Mortgage Loan, the fee
designated as such and payable to the Special Servicer pursuant to Section
8.10(b).
"Workout Fee Rate" means, with respect to each Corrected Mortgage Loan as
to which a Workout Fee is payable, 1.0%.
Section 1.2 Certain Calculations in Respect of the Mortgage Pool.
(a) All amounts collected in respect of any group of related
Cross-Collateralized Mortgage Loans (other than REO Mortgage Loans) in the form
of payments from Mortgagors, Insurance Proceeds, Condemnation Proceeds and
Liquidation Proceeds, shall be applied by the Master Servicer among such
Mortgage Loans in accordance with the express provisions of the
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related loan documents and, in the absence of such express provisions, on a pro
rata basis in accordance with the respective amounts then "due and owing" as to
each such Mortgage Loan. All amounts collected in respect of any Mortgage Loan
(whether or not such Mortgage Loan is a Cross-Collateralized Mortgage Loan)
other than an REO Mortgage Loan, in the form of payments from Mortgagors,
Liquidation Proceeds, Condemnation Proceeds, Insurance Proceeds Repurchase
Proceeds or payments of Substitution Shortfall Amounts shall be applied to
amounts due and owing under the related Mortgage Note and Mortgage (including,
without limitation, for principal and accrued and unpaid interest) in accordance
with the express provisions of the related Mortgage Note and Mortgage and, in
the absence of, or to the extent not covered by, such express provisions, shall
be applied for purposes of this Agreement: first, as a recovery of any related
unreimbursed Servicing Advances and, if applicable, unpaid Liquidation Expenses;
second, as a recovery of accrued and unpaid interest at the related Mortgage
Rate on such Mortgage Loan to but not including, as appropriate, the date of
receipt or, in the case of a full Monthly Payment from any Mortgagor, the
related Due Date; third, as a recovery of principal of such Mortgage Loan then
due and owing, including, without limitation, by reason of acceleration of the
Mortgage Loan following a default thereunder or exercise of a Call Option (or,
if a Liquidation Event has occurred in respect of such Mortgage Loan, as a
recovery of principal to the extent of its entire remaining unpaid principal
balance); fourth, as a recovery of amounts to be currently applied to the
payment of, or escrowed for the future payment of, real estate taxes,
assessments, insurance premiums, ground rents (if applicable) and similar items;
fifth, as a recovery of Reserve Funds to the extent then required to be held in
escrow; sixth, as a recovery of any Prepayment Premium then due and owing under
such Mortgage Loan; seventh, as a recovery of any Penalty Charges then due and
owing under such Mortgage Loan; eighth, as a recovery of any assumption fees and
modification fees then due and owing under such Mortgage Loan; ninth, as a
recovery of any other amounts then due and owing under such Mortgage Loan; and
tenth, as a recovery of any remaining principal of such Mortgage Loan to the
extent of its entire remaining unpaid principal balance.
(b) Collections in respect of each REO Property (exclusive of amounts to be
applied to the payment of the costs of operating, managing, maintaining and
disposing of such REO Property) shall be treated: first, as a recovery of any
related unreimbursed Servicing Advances; second, as a recovery of accrued and
unpaid interest on the related REO Mortgage Loan at the related Mortgage Rate to
but not including the Due Date in the Collection Period of receipt; third, as a
recovery of principal of the related REO Mortgage Loan to the extent of its
entire unpaid principal balance; and fourth, as a recovery of any other amounts
deemed to be due and owing in respect of the related REO Mortgage Loan.
(c) The foregoing applications of amounts received in respect of any
Mortgage Loan or REO Property shall be determined by the Master Servicer in its
reasonable and good faith judgment.
Section 1.3 Calculations of LIBOR. On each LIBOR Determination Date,
commencing with the LIBOR Determination Date in April, 1997 and continuing until
the Class Principal Balance of the Class A-2 Certificates and the Uncertificated
Principal Balances of REMIC II Regular Interests LG2 and A-2 have all been
reduced to zero, the Trustee shall determine LIBOR for the related Distribution
Date by reviewing the Telerate Page 3750 quotation,
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as of 11:00 a.m. (London time) on such LIBOR Determination Date, for 30-day
United States dollar deposits to leading banks in the London interbank market.
LIBOR shall be established by the Trustee on each LIBOR Determination Date
as follows:
(a) If on any LIBOR Determination Date the Telerate Page 3750 provides
such offered quotation, LIBOR for the related Distribution Date shall be
such offered quotation.
(b) If on any LIBOR Determination Date the quotation specified in the
immediately preceding clause (a) does not appear on the Telerate Page 3750,
LIBOR for the related Distribution Date shall be the average of the London
interbank market rates for one-month United States dollar deposits
appearing on the LIBO page of Reuters as of 11:00 a.m. (London time) on
such LIBOR Determination Date.
(c) If on any LIBOR Determination Date the quotations specified in the
immediately preceding clauses (a) and (b) do not appear, LIBOR for the
related Distribution Date shall be either (i) the arithmetic mean of the
offered rates which the Reference Banks (as defined below) are quoting, at
approximately 11:00 a.m. (London time) on the relevant LIBOR Determination
Date, for 30-day United States dollar deposits, at the principal London
office of each of the Reference Banks or those of them (being at least two
in number) at which such offered quotations are, in the opinion of the
Trustee, being so made, or (ii) if fewer than two quotations are provided
as requested by the Trustee, the arithmetic mean of the rates quoted by any
two or more major banks in New York City, selected by the Trustee, at
approximately 11:00 a.m., New York City time, on the relevant LIBOR
Determination Date, for 30-day loans in United States dollars to leading
European banks, provided that if such banks specified by the Trustee are
not providing such quotations, LIBOR for the related Distribution Date
shall be equal to LIBOR for the prior Distribution Date.
Initially, the "Reference Banks" shall be Bank of Tokyo Ltd., Barclay's
Bank plc, National Westminster Bank, plc, and Bankers Trust Company. Each
Reference Bank shall (i) be a leading bank engaged in transactions in Eurodollar
deposits in the international Eurocurrency market and (ii) have an established
place of business in London. If any such bank should fail to meet the
qualifications of a Reference Bank, the Trustee may designate alternative
Reference Banks meeting the criteria specified in this paragraph.
Section 1.4 Interpretation.
(a) As used herein and in any certificate or other document made or
delivered pursuant hereto or thereto, accounting terms not defined in Section
1.1 shall have the respective meanings given to them under generally accepted
accounting principles or regulatory accounting principles, as applicable.
(b) The words "hereof", "herein" and "hereunder", and words of similar
import, when used in this Agreement, shall refer to this agreement as a whole
and not to any particular provision of this Agreement, and references to
Sections, Schedules and Exhibits contained in this
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Agreement are references to Sections, Schedules and Exhibits in or to this
Agreement unless otherwise specified.
(c) Whenever a term is defined herein, the definition ascribed to such term
shall be equally applicable to both the singular and plural forms of such term
and to masculine, feminine and neuter genders of such term.
(d) This Agreement is the result of arm's-length negotiations between the
parties and has been reviewed by each party hereto and its counsel. Each party
agrees that any ambiguity in this Agreement shall not be interpreted against the
party drafting the particular clause which is in question.
ARTICLE II
DECLARATION OF TRUST;
ISSUANCES OF CERTIFICATES
Section 2.1 Conveyance of Mortgage Loans.
(a) The Depositor, concurrently with the execution and delivery hereof,
does hereby assign to the Trustee without recourse for the benefit of the
Certificateholders all the right, title and interest of the Depositor, including
any security interest therein for the benefit of the Depositor, in, to and under
(i) the Mortgage Loans identified on the Mortgage Loan Schedule, (ii) Sections
2, 4(a) and 6 of each Mortgage Loan Purchase Agreement and, to the extent it
relates to the obligations of ContiTrade under such Sections of Mortgage Loan
Purchase Agreement II, the right, title and interest of the Depositor in, to and
under the Conti Guaranty Agreement, (iii) the Additional Warranty Agreements (to
the extent assigned to the Depositor under Mortgage Loan Purchase Agreement I),
and (iv) all other assets included or to be included in REMIC I. Such assignment
includes all interest and principal received or receivable on or with respect to
the Mortgage Loans (other than payments of principal and interest due and
payable on the Mortgage Loans on or before the Cut-off Date). The transfer of
the Mortgage Loans and the related rights and property accomplished hereby is
absolute and, notwithstanding Section 13.12, is intended by the parties to
constitute a sale.
(b) In connection with the Depositor's assignment pursuant to Section
2.1(a) above, the Depositor shall direct, and hereby represents and warrants
that it has directed, each Seller pursuant to the applicable Mortgage Loan
Purchase Agreement to deliver to and deposit with, or cause to be delivered to
and deposited with, the Trustee or a Custodian appointed thereby (with a copy to
the Master Servicer), on or before the Closing Date, the Mortgage File for each
Mortgage Loan so assigned. If a Seller cannot so deliver, or cause to be
delivered, as to any of its Mortgage Loans, the original or a copy of any of the
documents and/or instruments referred to in clauses (ii), (iv), (viii), (xi)(A)
and (xii) of the definition of "Mortgage File", with (if appropriate) evidence
of recording or filing, as the case may be, thereon, solely because of a delay
caused by the public recording or filing office where such document or
instrument has been delivered for recordation or filing, the delivery
requirements of this Section 2.1(b) shall be
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deemed to have been satisfied as to such missing item, and such missing item
shall be deemed to have been included in the related Mortgage File, provided
that such Seller has delivered to the Trustee on or before the Closing Date a
copy of such document or instrument (without evidence of recording or filing
thereon, but certified (which certificate may relate to multiple documents
and/or instruments) by such Seller to be a true and complete copy of the
original thereof submitted for recording or filing, as the case may be), and the
Seller shall deliver to or at the direction of the Trustee, promptly following
the receipt thereof, the original of such missing document or instrument (or a
copy thereof) with (if appropriate) evidence of recording or filing, as the case
may be, thereon. If a Seller cannot so deliver, or cause to be delivered, as to
any of its Mortgage Loans, the original or a copy of the related lender's title
insurance policy referred to in clause (ix) of the definition of "Mortgage File"
solely because such policy has not yet been issued, the delivery requirements of
this Section 2.1(b) shall be deemed to be satisfied as to such missing item, and
such missing item shall be deemed to have been included in the related Mortgage
File, provided that such Seller has delivered to the Trustee on or before the
Closing Date a commitment for title insurance "marked-up" at the closing of such
Mortgage Loan, and such Seller shall deliver to or at the direction of the
Purchaser (or any subsequent owner of the affected Mortgage Loan, including
without limitation the Trustee), promptly following the receipt thereof, the
original related lender's title insurance policy (or a copy thereof). In
addition, notwithstanding anything to the contrary contained herein, if there
exists with respect to any group of related Cross-Collateralized Mortgage Loans
only one original of any document referred to in the definition of "Mortgage
File" covering all the Mortgage Loans in such group, then the inclusion of the
original of such document in the Mortgage File for any of the Mortgage Loans in
such group shall be deemed an inclusion of such original in the Mortgage File
for each such Mortgage Loan. None of the Trustee, any Custodian, the Master
Servicer or the Special Servicer shall be liable for any failure by any Seller
or the Depositor to comply with the document delivery requirements of the
Mortgage Loan Purchase Agreements and this Section 2.1(b).
If any of the endorsements referred to in clause (i) of the definition of
"Mortgage File", or any of the assignments referred to in clauses (iii), (v),
(vii), (x) and (xi)(B) of the definition of "Mortgage File", are delivered to
the Trustee in blank, the Trustee shall be responsible for completing the
related endorsement or assignment in the name of the Trustee (in such capacity).
(c) The Trustee shall, as to each Mortgage Loan, at the expense of the
related Seller, promptly (and in any event within 45 days following the receipt
thereof) deliver to a designee of the related Seller for purposes of its being
recorded or filed, as the case may be, in the appropriate public office for real
property records or UCC financing statements, as appropriate, each assignment to
the Trustee referred to in clauses (iii), (v) and (xi)(B) of the definition of
"Mortgage File". Each such assignment shall reflect that it should be returned
by the public recording office to the Trustee following recording or filing (at
which time it shall deliver a copy thereof to the Master Servicer); provided
that in those instances where the public recording office retains the original
assignment of Mortgage or assignment of Assignment of Leases, the Trustee shall
request such designee to obtain therefrom for the Trustee and the Master
Servicer at the expense of the related Seller a certified copy of the recorded
original. If any such document or instrument is lost or returned unrecorded or
unfiled, as the case may be, because of a defect therein, the Trustee shall
direct the related Seller pursuant to the applicable Mortgage
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Loan Purchase Agreement promptly to prepare or cause to be prepared a substitute
therefor or cure such defect, as the case may be, and thereafter the Trustee
shall upon receipt thereof deliver the same to a designee of the related Seller
for purposes of its being recorded or filed, as appropriate.
(d) All documents and records in the possession of the Depositor or the
Sellers that relate to the Mortgage Loans and that are not required to be a part
of a Mortgage File in accordance with the definition thereof shall be delivered
to the Master Servicer on or before the Closing Date and shall be held by the
Master Servicer on behalf of the Trustee in trust for the benefit of the
Certificateholders.
(e) In connection with the Depositor's assignment pursuant to Section
2.1(a) above, the Depositor shall deliver to the Trustee on or before the
Closing Date a copy of a fully executed counterpart of each Mortgage Loan
Purchase Agreement and each Additional Warranty Agreement, as in full force and
effect on the Closing Date.
Section 2.2 Acceptance by Trustee. The Trustee will hold (i) the documents
constituting a part of the Mortgage Files delivered to it, (ii) the REMIC I
Regular Interests and (iii) the REMIC II Regular Interests, in each case, in
trust for the use and benefit of all present and future Certificateholders.
Upon execution and delivery of this Agreement in respect of the Initial
Certification, and within 75 days after the execution and delivery of this
Agreement in respect of the Final Certification, the Trustee shall examine the
Mortgage Files in its possession, and shall deliver to the Depositor, the Master
Servicer, the Special Servicer and each Seller a certification (the "Initial
Certification" and the "Final Certification", respectively, in the respective
forms set forth as Exhibit B-1 and Exhibit B-2 hereto) stating, (i) in the case
of the Initial Certification, as to each Mortgage Loan listed in the Mortgage
Loan Schedule, except as may be specified in the schedule of exceptions to
Mortgage File delivery attached thereto, to the effect that (A) all documents
specified in clause (i) of the definition of "Mortgage File" are in its
possession, (B) such documents have been reviewed by it and have not been
materially mutilated, damaged, defaced, torn or otherwise physically altered,
and such documents relate to such Mortgage Loan, (C) based on its examination
and only as to the foregoing documents, the loan number and the name of the
Mortgagor set forth in the Mortgage Loan Schedule respecting such Mortgage Loan
accurately reflects the information contained in such documents, and (D) each
Mortgage Note has been endorsed as provided in clause (i) of the definition of
Mortgage File; and (ii) in the case of the Final Certification, as to each
Mortgage Loan listed in the Mortgage Loan Schedule, except as may be specified
in the schedule of exceptions to Mortgage File delivery attached thereto, to the
effect that (W) all documents specified in clauses (i), (ii), (iii), (ix), (xii)
(to the extent it relates to the foregoing) and (xiii) (in the case of the
Mortgage Loans secured by Centerpoint Plaza, Hilton Village Shopping Center and
Town South Shopping Center) of the definition of "Mortgage File" are in its
possession, (X) all documents delivered to it or a Custodian as part of the
related Mortgage File have been reviewed by it or such Custodian and have not
been materially mutilated, damaged, defaced, torn or otherwise physically
altered, and such documents relate to such Mortgage Loan, (Y) based on its
examination and only as to the foregoing documents, the loan number, the street
address of the Mortgaged Property and the name of the
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Mortgagor set forth in the Mortgage Loan Schedule respecting such Mortgage Loan
accurately reflects the information contained in the documents in the Mortgage
File and (Z) each Mortgage Note has been endorsed and each Mortgage has been
assigned as provided in clauses (i) and (iii) of the definition of "Mortgage
File." The Trustee shall deliver to the Master Servicer, the Special Servicer
and each Seller (as to its respective Mortgage Loans only), a copy of such Final
Certification. Within 180 days after the Cut-off Date, the Trustee shall provide
a confirmation to the Master Servicer, the Special Servicer and each Seller of
receipt or non-receipt of recorded Assignments of Mortgage. In giving the
certifications required above, the Trustee shall be under no obligation or duty
to inspect, review or examine any such documents, instruments, securities or
other papers to determine whether they or the signatures thereon are valid,
legal, genuine, enforceable, in recordable form or appropriate for their
represented purposes, or that they are other than what they purport to be on
their face, or to determine whether any Mortgage File should include any
assumption agreement, modification agreement, consolidation agreement, extension
agreement, Assignment of Lease, ground lease, UCC financing statement, guaranty,
written assurance or substitution agreement.
The Trustee or its authorized agents shall retain possession and custody of
each Mortgage File in accordance with and subject to the terms and conditions
set forth herein.
Section 2.3 Sellers' Repurchase of Mortgage Loans for Document Defects and
Breaches of Representations and Warranties.
(a) If any party hereto discovers that any document constituting a part of
a Mortgage File has not been properly executed, is missing, contains information
that does not conform in any respect with the corresponding information set
forth in the Mortgage Loan Schedule, or does not appear to be regular on its
face (each, a "Document Defect"), or discovers or receives notice of a breach of
any representation, warranty or covenant relating to any Mortgage Loan set forth
in the related Mortgage Loan Purchase Agreement or the related Additional
Warranty Agreement, as the case may be that may give rise to a repurchase
obligation on the part of the related Seller or the related Additional
Warranting Party, as the case may be (a "Breach"), such party shall give prompt
written notice to the other parties hereto. Promptly upon becoming aware of any
such Document Defect or Breach, the Trustee shall request that the related
Seller or the related Additional Warranting Party, as applicable, within the
time period provided for in the related Mortgage Loan Purchase Agreement or the
related Additional Warranty Agreement, as applicable; cure such Document Defect
or Breach, as the case may be, in all material respects or repurchase the
affected Mortgage Loan for a cash amount equal to the applicable Purchase Price
(or, in the case of an Additional Warranting Party, equal to such lesser amount
as is provided in the related Additional Warranty Agreement, with the difference
to be covered by the Depositor out of its own funds), all in accordance with the
related Mortgage Loan Purchase Agreement or the related Additional Warranty
Agreement, as applicable, provided, however, that, in lieu of effecting any such
repurchase, a Seller or an Additional Warranty Party will be permitted to
deliver a Qualifying Substitute Mortgage Loan and to pay a cash amount equal to
the applicable Substitution Shortfall Amount (or, in the case of an Additional
Warranting Party, equal to such lesser amount as is provided in the related
Additional Warranty Agreement, with the difference to be covered by the
Depositor out of its own funds), subject to the terms and conditions of the
related Mortgage Loan Purchase Agreement or the related Additional Warranty
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Agreement, as the case may be, and this Agreement.
As to any Qualifying Substitute Mortgage Loan or Loans, the Trustee shall
direct the related Seller or related Additional Warranting Party to deliver to
the Trustee for such Qualifying Substitute Mortgage Loan or Loans (with a copy
to the Master Servicer), the related Mortgage File(s) with the related Mortgage
Note(s) endorsed as required by clause (i) of the definition of "Mortgage File".
No substitution may be made in any calendar month after the Determination Date
for such month. Monthly Payments due with respect to Qualifying Substitute
Mortgage Loans after the related date of substitution, and Monthly Payments due
with respect to Deleted Mortgage Loans after the Cut-off Date and on or prior to
the related date of substitution, shall be part of the Trust Fund. Monthly
Payments due with respect to Qualifying Substitute Mortgage Loans on or prior to
the related date of substitution, and Monthly Payments due with respect to
Deleted Mortgage Loans after the related date of substitution, shall not be part
of the Trust Fund and will be remitted by the Master Servicer to the related
Seller promptly following receipt.
In any month in which a Seller or an Additional Warranting Party
substitutes one or more Qualifying Substitute Mortgage Loans for one or more
Deleted Mortgage Loans, the Master Servicer will determine the applicable
Substitution Shortfall Amount. The Trustee shall direct such Seller, or shall
direct such Additional Warranting Party and the Depositor collectively, as the
case may be, to deposit cash equal to such amount into the Collection Account
concurrently with the delivery of the Mortgage File(s) for the Qualifying
Substitute Mortgage Loan(s), without any reimbursement thereof. The Master
Servicer shall give written notice to the Trustee of such deposit promptly
following the occurrence thereof.
If the affected Mortgage Loan is to be repurchased, the Trustee shall
designate the Collection Account as the account to which funds in the amount of
the Purchase Price are to be wired. Any such purchase of a Mortgage Loan shall
be on a whole loan, servicing released basis.
Amounts paid by the Depositor to supplement amounts paid by an Additional
Warranty Party in connection with the repurchase or replacement of any Mortgage
Loan as contemplated by this Section 2.3 shall be deemed to be Repurchase
Proceeds or payments of the related Substitution Shortfall Amount, as
applicable, and shall be paid concurrently with the corresponding payments by
the Additional Warranting Party.
The Trustee shall direct the related Seller to amend the Mortgage Loan
Schedule to reflect the removal of each Deleted Mortgage Loan and, if applicable
the substitution of the Qualifying Substitute Mortgage Loan(s); and, upon such
amendment, the Trustee shall deliver or cause the delivery of such amended
Mortgage Loan Schedule to the other parties hereto. Upon any such substitution,
the Qualifying Substitute Mortgage Loan(s) shall be subject to the terms of this
Agreement in all respects.
(b) In connection with any repurchase of or substitution for a Mortgage
Loan contemplated by this Section 2.3, the Trustee, the Master Servicer and the
Special Servicer shall each promptly tender to the related Seller or Additional
Warranting Party, as applicable, upon delivery to each of them of a receipt
executed by such Seller or Additional Warranting Party, as
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applicable, all portions of the Mortgage File and other documents pertaining to
such Mortgage Loan possessed by it, and each document that constitutes a part of
the Mortgage File shall be endorsed or assigned to the extent necessary or
appropriate to the related Seller or the related Additional Warranting Party, as
the case may be, or its designee in the same manner, and pursuant to appropriate
forms of assignment, substantially similar to the manner and forms pursuant to
which documents were previously assigned to the Trustee, but in any event,
without recourse, representation or warranty; provided that such tender by the
Trustee shall be conditioned upon its receipt from the Master Servicer of a
Request for Release.
(c) Notwithstanding anything to the contrary, all references to "Seller" in
subsections (a) and (b) of this Section 2.3 shall, in the case of ContiTrade, be
deemed to also be references to the Conti Guarantor, and all notices,
directions, requests and other communications to ContiTrade shall also be
forwarded to the Conti Guarantor.
(d) The Mortgage Loan Purchase Agreements, the Additional Warranty
Agreements and the Conti Guaranty Agreement provide the sole remedies available
to the Certificateholders, or the Trustee on behalf of the Certificateholders,
respecting any Document Defect or Breach.
Section 2.4 Representations and Warranties.
The Depositor hereby represents and warrants to the Master Servicer, the
Special Servicer, the Fiscal Agent and the Trustee as of the Closing Date that:
(i) The Depositor is a corporation duly organized, validly existing
and in good standing under the laws governing its creation and existence
and has full corporate power and authority to own its property, to carry on
its business as presently conducted, to enter into and perform its
obligations under this Agreement, and to create the trust pursuant hereto;
(ii) The execution and delivery by the Depositor of this Agreement
have been duly authorized by all necessary corporate action on the part of
the Depositor; neither the execution and delivery of this Agreement, nor
the consummation of the transactions herein contemplated, nor compliance
with the provisions hereof, will conflict with or result in a breach of, or
constitute a default under, (A) any of the provisions of any law,
governmental rule, regulation, judgment, decree or order binding on the
Depositor or its properties; (B) the certificate of incorporation or bylaws
of the Depositor; or (C) the terms of any indenture or other agreement or
instrument to which the Depositor is a party or by which it is bound;
neither the Depositor nor any of its Affiliates is a party to, bound by, or
in breach of or violation of any indenture or other agreement or
instrument, or subject to or in violation of any statute, order or
regulation of any court, regulatory body, administrative agency or
governmental body having jurisdiction over it, which materially and
adversely affects or to the best knowledge of the Depositor may in the
future materially and adversely affect (X) the ability of the Depositor to
perform its obligations under this Agreement or (Y) the business,
operations, financial condition, properties or assets of the Depositor;
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(iii) The execution, delivery and performance by the Depositor of this
Agreement and the consummation of the transactions contemplated hereby do
not require the consent or approval of, the giving of notice to, the
registration with, or the taking of any other action in respect of, any
state, federal or other governmental authority or agency, except such as
has been obtained, given, effected or taken prior to the date hereof;
(iv) This Agreement has been duly executed and delivered by the
Depositor and, assuming due authorization, execution and delivery by the
other parties hereto, constitutes a valid and binding obligation of the
Depositor enforceable against it in accordance with its terms;
(v) There are no actions, suits or proceedings pending or, to the best
of the Depositor's knowledge, threatened or likely to be asserted against
or affecting the Depositor, before or by any court, administrative agency,
arbitrator or governmental body (A) with respect to any of the transactions
contemplated by this Agreement or (B) with respect to any other matter
which in the judgment of the Depositor will be determined adversely to the
Depositor and will, if determined adversely to the Depositor, materially
and adversely affect it or its business, assets, operations or condition,
financial or otherwise, or adversely affect its ability to perform its
obligations under this Agreement; and
(vi) Immediately prior to the consummation of the transactions
contemplated in this Agreement, the Depositor had good title to and was the
sole owner of each Mortgage Loan free and clear of any and all adverse
claims, charges or security interests.
Section 2.5 Conveyance of Interests. Concurrently with the execution and
delivery of this Agreement, the Depositor does hereby transfer, assign, set
over, deposit with and otherwise convey to the Trustee, without recourse, in
trust, all the right, title and interest of the Depositor in and to (i) the
REMIC I Regular Interests in exchange for the REMIC II Interests and (ii) the
REMIC II Regular Interests in exchange for the REMIC III Certificates.
ARTICLE III
THE CERTIFICATES
Section 3.1 The Certificates.
(a) The Certificates shall be in substantially the forms set forth in
Exhibits A-1 through A-17 hereto, with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by this
Agreement or as may in the reasonable judgment of the Trustee or the Depositor
be necessary, appropriate or convenient to comply, or facilitate compliance,
with applicable laws, and may have such letters, numbers or other marks of
identification and such legends or endorsements placed thereon as may be
required to comply with
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the rules of any securities exchange on which any of the Certificates may be
listed, or as may, consistently herewith, be determined by the officers
executing such Certificates, as evidenced by their execution thereof.
The Definitive Certificates shall be printed, typewritten, lithographed or
engraved or produced by any combination of these methods or may be produced in
any other manner permitted by the rules of any securities exchange on which any
of the Certificates may be listed, all as determined by the officers executing
such Certificates, as evidenced by their execution thereof.
(b) The REMIC III Regular Certificates will be issued in minimum
denominations of $50,000 (or, in the case of the Class A Certificates, $5,000)
in initial Certificate Principal Balance or Certificate Notional Amount, as
applicable, and in integral multiples of $1 in excess thereof. The Residual
Certificates will be issued in minimum Percentage Interests of not less than
10%.
(c) Each Certificate shall, on original issue, be authenticated by the
Trustee or the Authenticating Agent upon the order of the Depositor. 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 substantially in the form provided for herein, executed by an
authorized officer of the Trustee or the Authenticating Agent, if any, by manual
signature, and such certification 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. At any time and from time to time after the execution
and delivery of this Agreement, the Depositor may deliver Certificates to the
Trustee for authentication, and the Trustee or the Authenticating Agent shall
authenticate and deliver such Certificates as in this Agreement provided and not
otherwise. In the event that additional Certificates need to be prepared at any
time subsequent to the Closing Date, the Depositor shall prepare, or cause to be
prepared, and deliver, or cause to be delivered, at the Depositor's expense, any
such additional Certificates. With respect to the REMIC III Regular
Certificates, on the Closing Date the Trustee or the Authenticating Agent upon
the order of the Depositor shall authenticate Book-Entry Certificates that are
issued to a Clearing Agency or its nominee as provided in Section 3.6 against
payment of the purchase price thereof.
Section 3.2 Registration. The Trustee initially shall be the registrar in
respect of the Certificates who shall maintain books for the registration and
for the transfer of Certificates (the "Certificate Register"). The Certificate
Registrar may resign or be discharged or removed by the Trustee or the
Certificateholders, and a new successor may be appointed, in accordance with the
procedures and requirements set forth in Sections 7.6 and 7.7 hereof with
respect to the resignation, discharge or removal of the Trustee and the
appointment of a successor Trustee. The Certificate Registrar may appoint, by a
written instrument delivered to the Holders and the Trustee, any trust company
to act as co-registrar under such conditions as the Certificate Registrar may
prescribe; provided that the Certificate Registrar shall not be relieved of any
of its duties or responsibilities hereunder by reason of such appointment.
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Section 3.3 Transfer and Exchange of Certificates.
(a) A Certificate may be transferred by the Holder thereof, subject to the
restrictions set forth below, only upon presentation and surrender of such
Certificate at the Corporate Trust Office (or the New York Presenting Office, if
any) duly endorsed or accompanied by a written instrument of transfer duly
executed by such Holder or such Holder's duly authorized attorney in such form
as shall be satisfactory to the Certificate Registrar. Upon the transfer of any
Certificate in accordance with the preceding sentence, the Trustee shall
execute, and the Trustee or any Authenticating Agent shall authenticate and
deliver to the transferee, one or more new Certificates of the same Class, in
authorized denominations, evidencing in the aggregate the same aggregate
Certificate Principal Balance, Certificate Notional Amount or Percentage
Interest, as the case may be, as the Certificate being transferred. No service
charge shall be made to a Certificateholder for any registration of transfer of
Certificates, but the Certificate Registrar may require payment of a sum
sufficient to cover any tax or governmental charge that may be imposed in
connection with any registration or transfer of Certificates. The Trustee may
decline to accept any request for a registration of transfer of any Certificate
during the period beginning five calendar days prior to any Distribution Date.
(b) A Certificate may be exchanged by the Holder thereof for any number of
new Certificates of the same Class, in authorized denominations, representing in
the aggregate the same aggregate Certificate Principal Balance, Certificate
Notional Amount or Percentage Interest, as the case may be, as the Certificate
surrendered, upon surrender of the Certificate to be exchanged at the Corporate
Trust Office (or New York Presenting Office, if any) duly endorsed or
accompanied by a written instrument of exchange duly executed by such Holder or
such Holder's duly authorized attorney in such form as is satisfactory to the
Certificate Registrar. Certificates delivered upon any such exchange will
evidence the same obligations, and will be entitled to the same rights and
privileges, as the Certificates surrendered. No service charge shall be made to
a Certificateholder for any exchange of Certificates, but the Certificate
Registrar may require payment of a sum sufficient to cover any tax or
governmental charge that may be imposed in connection with any exchange of
Certificates. Whenever any Certificates are so surrendered for exchange, the
Trustee shall execute and the Trustee or the Authenticating Agent shall
authenticate, date and deliver the Certificates which the Certificateholder
making the exchange is entitled to receive.
(c) No transfer, sale, pledge or other disposition of any Non-Registered
Certificate or interest therein shall be made unless that transfer, sale, pledge
or other disposition is exempt from the registration and/or qualification
requirements of the Securities Act and any applicable state securities laws, or
is otherwise made in accordance with the Securities Act and such state
securities laws. If a transfer of any Non-Registered Certificate held as a
Definitive Certificate is to be made without registration under the Securities
Act (other than in connection with the initial issuance of the Certificates or a
transfer of such Non-Registered Certificate by the Depositor or one of its
Affiliates), then the Certificate Registrar shall refuse to register such
transfer unless it receives (and upon receipt, may conclusively rely upon)
either: (i) a certificate from the Certificateholder desiring to effect such
transfer substantially in the form attached as Exhibit D-1 hereto and a
certificate from such Certificateholder's prospective transferee substantially
in the form attached either as Exhibit D-2A hereto or as Exhibit D-2B hereto; or
(ii)
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an Opinion of Counsel satisfactory to the Trustee to the effect that such
transfer may be made without registration under the Securities Act (which
Opinion of Counsel shall not be an expense of the Trust Fund or of the
Depositor, the Master Servicer, the Special Servicer, the Trustee or the
Certificate Registrar in their respective capacities as such), together with the
written certification(s) as to the facts surrounding such transfer from the
Certificateholder desiring to effect such transfer and/or such
Certificateholder's prospective Transferee on which such Opinion of Counsel is
based. If a transfer of any interest in a Non-Registered Certificate that
constitutes a Book-Entry Certificate is to be made without registration under
the Securities Act (other than in connection with the initial issuance of the
Certificates or a transfer of any interest in such Non-Registered Certificate by
the Depositor or any of its Affiliates), then the Certificate Owner desiring to
effect such transfer shall be required to obtain either (i) a certificate from
such Certificate Owner's prospective Transferee substantially in the form
attached as Exhibit D-3A hereto or as Exhibit D-3B hereto, or (ii) an Opinion of
Counsel to the effect that such transfer may be made without registration under
the Securities Act. None of the Depositor, the Trustee or the Certificate
Registrar is obligated to register or qualify any Class of Non-Registered
Certificates under the Securities Act or any other securities law or to take any
action not otherwise required under this Agreement to permit the transfer of any
Non-Registered Certificate or interest therein without registration or
qualification. Any Certificateholder or Certificate Owner desiring to effect a
transfer of Non-Registered Certificates or interests therein shall, and does
hereby agree to, indemnify, the Depositor, the Underwriter, the Trustee, the
Fiscal Agent, the Master Servicer, the Special Servicer and the Certificate
Registrar against any liability that may result if the transfer is not exempt
from such registration or qualification or is not made in accordance with such
federal and state laws.
(d) No transfer of a Subordinate or Residual Certificate or any interest
therein shall be made (A) to any employee benefit plan or other retirement
arrangement, including individual retirement accounts and annuities, Keogh plans
and collective investment funds and separate accounts in which such plans,
accounts or arrangements are invested, including, without limitation, insurance
company general accounts, that is subject to ERISA or the Code (each, a "Plan"),
or (B) to any Person who is directly or indirectly purchasing such Certificate
or interest therein on behalf of, as named fiduciary of, as trustee of, or with
assets of a Plan, unless: (i) in the case of a Subordinate Certificate that
constitutes a Book-Entry Certificate, the purchase and holding of such
Certificate or interest therein is exempt from the prohibited transaction
provisions of Section 406 of ERISA and Section 4975 of the Code under Sections I
and III of Prohibited Transaction Class Exemption 95-60; or (ii) in the case of
a Subordinate or Residual Certificate held as a Definitive Certificate, the
prospective Transferee provides the Certificate Registrar with a certification
of facts and an Opinion of Counsel which establish to the satisfaction of the
Trustee that such transfer will not result in a violation of Section 406 of
ERISA or Section 4975 of the Code or result in the imposition of an excise tax
under Section 4975 of the Code or subject the Depositor, the Trustee, the Fiscal
Agent, the Master Servicer or the Special Servicer to any obligation in addition
to those undertaken in this Agreement. Each Person who acquires any Subordinate
or Residual Certificate or interest therein (unless it shall have acquired such
Certificate or interest therein from the Depositor or an Affiliate thereof or
unless it shall have delivered to the Certificate Registrar the certification of
facts and Opinion of Counsel referred to in clause (ii) of the preceding
sentence) shall be required to deliver to the Certificate Registrar (or, in the
case of an interest in a Subordinate Certificate that constitutes a Book-Entry
Certificate, to
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the Certificate Owner that is transferring such interest) a certification to the
effect that: (i) it is neither a Plan nor any Person who is directly or
indirectly purchasing such Certificate or interest therein on behalf of, as
named fiduciary of, as trustee of, or with assets of a Plan; or (ii) that the
purchase and holding of such Certificate or interest therein by such person is
exempt from the prohibited transaction provisions of Section 406 of ERISA and
Section 4975 of the Code under Sections I and III of Prohibited Transaction
Class Exemption 95-60.
(e) (i) Each Person who has or who acquires any Ownership Interest in a
Residual Certificate shall be deemed by the acceptance or acquisition of such
Ownership Interest to have agreed to be bound by the following provisions and to
have irrevocably authorized the Trustee under clause (ii)(A) below to deliver
payments to a Person other than such Person and to have irrevocably authorized
the Trustee under clause (ii)(B) below to negotiate the terms of any mandatory
sale and to execute all instruments of Transfer and to do all other things
necessary in connection with any such sale. The rights of each Person acquiring
any Ownership Interest in a Residual Certificate are expressly subject to the
following provisions:
(A) Each Person holding or acquiring any Ownership Interest in a
Residual Certificate shall be a Permitted Transferee and a United States
Person and shall promptly notify the Trustee of any change or impending
change in its status as a Permitted Transferee.
(B) In connection with any proposed Transfer of any Ownership Interest
in a Residual Certificate, the Trustee shall require delivery to it, and no
Transfer of any Residual Certificate shall be registered until the Trustee
receives, an affidavit and agreement substantially in the form attached
hereto as Exhibit E-1 (a "Transfer Affidavit and Agreement") from the
proposed Transferee, in form and substance satisfactory to the Trustee,
representing and warranting, among other things, that such Transferee is a
Permitted Transferee, that it is not acquiring its Ownership Interest in
the Residual Certificate that is the subject of the proposed Transfer as a
nominee, trustee or agent for any Person that is not a Permitted
Transferee, that for so long as it retains its Ownership Interest in a
Residual Certificate, it will endeavor to remain a Permitted Transferee,
that it is a United States Person, and that it has reviewed the provisions
of this Section 3.3(e) and agrees to be bound by them.
(C) Notwithstanding the delivery of a Transfer Affidavit and Agreement
by a proposed Transferee under clause (B) above, if the Trustee has actual
knowledge that the proposed Transferee is not a Permitted Transferee or is
not a United States Person, no Transfer of an Ownership Interest in a
Residual Certificate to such proposed Transferee shall be effected.
(D) Each Person holding or acquiring any Ownership Interest in a
Residual Certificate shall agree (1) to require a Transfer Affidavit and
Agreement from any prospective Transferee to whom such Person attempts
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to transfer its Ownership Interest in such Residual Certificate and (2) not
to transfer its Ownership Interest in such Residual Certificate unless it
provides to the Trustee a certificate substantially in the form attached
hereto as Exhibit E-2 stating that, among other things, it has no actual
knowledge that such prospective Transferee is not a Permitted Transferee or
is not a United States Person.
(E) Each Person holding or acquiring an Ownership Interest in a
Residual Certificate, by purchasing an Ownership Interest in such
Certificate, agrees to give the Trustee written notice that it is a
"pass-through interest holder" within the meaning of temporary Treasury
regulation Section 1.67-3T(a)(2)(i)(A) immediately upon acquiring an
Ownership Interest in a Residual Certificate, if it is, or is holding an
Ownership Interest in a Residual Certificate on behalf of, a "pass-through
interest holder".
(ii) (A) If any purported Transferee shall become a Holder of a Residual
Certificate in violation of the provisions of this Section 3.3(e) or if any
Holder of a Residual Certificate shall lose its status as a Permitted Transferee
or a United States Person, then the last preceding Holder of such Residual
Certificate that was in compliance with the provisions of this Section 3.3(e)
shall be restored, to the extent permitted by law, to all rights as Holder
thereof retroactive to the date of registration of such Transfer of such
Residual Certificate. None of the Trustee, the Master Servicer, the Special
Servicer or the Certificate Registrar shall be under any liability to any Person
for any registration of Transfer of a Residual Certificate that is in fact not
permitted by this Section 3.3(e) or for making any payments due on such
Certificate to the Holder thereof or for taking any other action with respect to
such Holder under the provisions of this Agreement.
(B) If any purported Transferee shall become a Holder of a Residual
Certificate in violation of the restrictions in this Section 3.3(e), or if
any Holder of a Residual Certificate shall lose its status as a Permitted
Transferee or a United States Person, and to the extent that the
retroactive restoration of the rights of the prior Holder of such Residual
Certificate as described in clause (ii)(A) above shall be invalid, illegal
or unenforceable, then the Trustee shall have the right, without notice to
the Holder or any prior Holder of such Residual Certificate, but not the
obligation, to sell such Residual Certificate to a purchaser selected by
the Trustee on such terms as the Trustee may choose. Such non-complying
Holder shall promptly endorse and deliver such Residual Certificate in
accordance with the instructions of the Trustee. Such purchaser may be the
Trustee itself or any Affiliate of the Trustee. The proceeds of such sale,
net of the commissions (which may include commissions payable to the
Trustee or its Affiliates), expenses and taxes due, if any, will be
remitted by the Trustee to such noncomplying Holder. The terms and
conditions of any sale under this clause (ii)(B) shall be determined in the
sole discretion of the Trustee, and the Trustee shall not be liable to any
Person having an Ownership Interest in a Residual Certificate as a result
of its exercise of such discretion.
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(iii) The Trustee shall make available to the Internal Revenue Service and
those Persons specified by the REMIC Provisions, all information necessary to
compute any tax imposed (A) as a result of the Transfer of an Ownership Interest
in a Residual Certificate to any Person who is not a Permitted Transferee,
including the information described in Treasury regulations sections
1.860D-1(b)(5) and 1.860E-2(a)(5) with respect to the "excess inclusions" of
such Residual Certificate and (B) as a result of any regulated investment
company, real estate investment trust, common trust fund, partnership, trust,
estate or organization described in Section 1381 of the Code that holds an
Ownership Interest in a Residual Certificate having as among its record holders
at any time any Person which is not a Permitted Transferee. The Person holding
such Ownership Interest shall be responsible for the reasonable compensation of
the Trustee for providing such information.
(iv) The provisions of this Section 3.3(e) set forth prior to this
subsection (iv) may be modified, added to or eliminated, provided that there
shall have been delivered to the Trustee and the Depositor the following:
(A) written notification from each Rating Agency to the effect that
the modification of, addition to or elimination of such provisions will not
cause such Rating Agency to qualify, downgrade or withdraw its then current
rating of any Class of Certificates; and
(B) an Opinion of Counsel, in form and substance satisfactory to the
Trustee and the Depositor, to the effect that such modification of,
addition to or elimination of such provisions will not cause any of REMIC
I, REMIC II or REMIC III to (x) cease to qualify as a REMIC or (y) be
subject to an entity-level tax caused by the Transfer of any Residual
Certificate to a Person which is not a Permitted Transferee, or cause a
Person other than the prospective Transferee to be subject to a REMIC
related tax caused by the Transfer of a Residual Certificate to a Person
which is not a Permitted Transferee.
(f) The Trustee shall have no liability to the Trust arising from a
transfer of any Certificate in reliance upon a certification, ruling or Opinion
of Counsel described in this Section 3.3; provided, however, that the Trustee
shall not register the transfer of a Residual Certificate if it has actual
knowledge that the proposed transferee does not meet the qualifications of a
permitted Holder of a Residual Certificate as set forth in Section 3.3(e).
Neither the Trustee nor the Certificate Registrar shall have any obligation or
duty to monitor, determine or inquire as to compliance with any restriction on
transfer or exchange of Certificates or any interest therein imposed under this
Article III or under applicable law other than to require delivery of the
certifications and/or opinions described in this Article III; provided, however,
that the Trustee shall not register the transfer of a Residual Certificate if it
has actual knowledge that the proposed transferee does not meet the
qualifications of a permitted Holder of a Residual Certificate as set forth in
Section 3.3(e). The Trustee and the Certificate Registrar shall have no
liability for transfers (including without limitation transfers made through the
book-entry facilities of the Depository or between or among Participants or
Certificate Owners) made in violation of applicable restrictions, provided that
the Trustee and Certificate Registrar have satisfied their
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respective duties expressly set forth in Sections 3.3(c), 3.3(d) and 3.3(e).
(g) All Certificates surrendered for transfer and exchange shall be
physically canceled by the Certificate Registrar, and the Certificate Registrar
shall hold such canceled Certificates in accordance with its standard
procedures.
(h) The Certificate Registrar shall provide notice to the Master Servicer,
the Special Servicer and the Depositor of each transfer of a Certificate and,
upon written request, provide each such Person with an updated copy of the
Certificate Register within a reasonable period of time following receipt of
such request.
(i) Unless and until it is exchanged in whole for the individual
Certificates represented thereby, a Global Certificate representing all of the
Certificates of a Class may not be transferred, except as a whole by the
Depository to a nominee of the Depository or by a nominee of the Depository to
the Depository or another nominee of the Depository or by the Depository or any
such nominee to a successor Clearing Agency or a nominee of such successor
Clearing Agency, and no such transfer to any such other Person may be
registered; provided that this subsection (i) shall not prohibit any transfer of
a Certificate of a Class that is issued in exchange for a Global Certificate of
the same Class pursuant to Section 3.8 below. Nothing in this subsection (i)
shall prohibit or render ineffective any transfer of a beneficial interest in a
Global Certificate effected in accordance with the other provisions of this
Section 3.3.
Section 3.4 Mutilated, Destroyed, Lost or Stolen Certificates. If (a) any
mutilated Certificate is surrendered to the Trustee, or the Trustee receives
evidence to its satisfaction of the destruction, loss or theft of any
Certificate and (b) except in the case of a mutilated Certificate so
surrendered, there is delivered to the Trustee such security or indemnity as may
be required by it to save it harmless, then, in the absence of notice to the
Trustee that such Certificate has been acquired by a bona fide purchaser, the
Trustee shall execute, authenticate and deliver, in exchange for or in lieu of
any such mutilated, destroyed, lost or stolen Certificate, a new Certificate of
like tenor and interest in the Trust. In connection with the issuance of any new
Certificate under this Section 3.4, the Trustee 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
Trustee) connected therewith. Any replacement Certificate issued pursuant to
this Section 3.4 shall constitute complete and indefeasible evidence of
ownership in the Trust, as if originally issued, whether or not the lost, stolen
or destroyed Certificate shall be found at any time.
Section 3.5 Persons Deemed Owners. Prior to presentation of a Certificate
for registration of transfer, the Depositor, the Master Servicer, the Special
Servicer, the Fiscal Agent, the Trustee, the Operating Adviser and any agent of
the Depositor, the Master Servicer, the Special Servicer, the Fiscal Agent, the
Trustee or the Operating Adviser may treat the Person in whose name any
Certificate is registered as the owner of such Certificate for the purpose of
receiving distributions as provided in this Agreement and for all other purposes
whatsoever, and neither the Master Servicer, the Special Servicer, the Trustee,
the Fiscal Agent, the Operating Adviser nor any agent of the Master Servicer,
the Special Servicer the Fiscal Agent, the Trustee or the Operating Adviser
shall be affected by any notice to the contrary.
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Section 3.6 Book-Entry Certificates.
(a) Notwithstanding the foregoing, each Class of REMIC III Regular
Certificates, upon original issuance, shall be issued in the form of one or more
physical certificates (collectively, as to any Class of Book-Entry Certificates,
a "Global Certificate") representing such Class, to be delivered to the Trustee,
as custodian for The Depository Trust Company (the "Depository"), the initial
Clearing Agency, by, or on behalf of, the Depositor. The Global Certificates
shall initially be registered on the Certificate Register in the name of Cede &
Co., the nominee of the Depository, as the initial Clearing Agency, and no
Certificate Owner will receive a Definitive Certificate representing such
Certificate Owners's interest in the Book-Entry Certificates, except as provided
in Section 3.8. Unless and until Definitive Certificates have been issued to the
Certificate Owners pursuant to Section 3.8:
(i) the provisions of this Section 3.6 shall be in full force and
effect with respect to each such Class;
(ii) the Depositor, the Master Servicer, the Certificate Registrar and
the Trustee may deal with the Clearing Agency for all purposes (including
the making of distributions on the Certificates) as the authorized
representative of the Certificate Owners;
(iii) to the extent that the provisions of this Section 3.6 conflict
with any other provisions of this Agreement, the provisions of this Section
3.6 shall control with respect to each such Class; and
(iv) the rights of the Certificate Owners of each such Class shall be
exercised only through the Clearing Agency and the applicable Participants
and shall be limited to those established by law and agreements between
such Certificate Owners and the Clearing Agency, the Participants and/or
the Indirect Participants. Pursuant to the Depository Agreement, unless and
until Certificates are issued pursuant to Section 3.8, the initial Clearing
Agency will make book-entry transfers among the Participants and receive
and transmit distributions of principal and interest on the related
Certificates to such Participants.
(b) For purposes of any provision of this Agreement requiring or permitting
actions with the consent of, or at the direction of, Holders of the Certificates
evidencing a specified percentage of the aggregate unpaid principal amount of
Certificates, such direction or consent may be given by the Clearing Agency at
the direction of Certificate Owners owning Certificates evidencing the requisite
percentage of principal amount of Certificates. The Clearing Agency may take
conflicting actions with respect to the Certificates to the extent that such
actions are taken on behalf of the Certificate Owners.
Section 3.7 Notices to Clearing Agency. Whenever notice or other
communication to the Certificateholders is required under this Agreement, unless
and until Definitive Certificates shall have been issued to the related
Certificateholders pursuant to Section 3.8, the Trustee shall give all such
notices and communications specified herein to be given to Holders of the
Book-Entry Certificates to the Clearing Agency which shall give such notices and
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communications to the related Participants in accordance with its applicable
rules, regulations and procedures.
Section 3.8 Definitive Certificates.
(a) Definitive Certificates will be issued to the owners of beneficial
interests in a Class of Book-Entry Certificates or their nominees if (i) the
Depository notifies the Depositor and the Trustee in writing that the Depository
is unwilling or unable to continue as Clearing Agency for the Book-Entry
Certificates and a qualifying successor Clearing Agency is not appointed by the
Depositor within 90 days thereof, or (ii) the Depositor, at its option, elects
to terminate the book-entry system through the Clearing Agency. Upon notice of
the occurrence of either of the events described in the preceding sentence, the
Trustee shall notify all Certificate Owners, through the Clearing Agency, of the
occurrence of the event and of the availability of Definitive Certificates to
such Certificate Owners requesting the same. Upon surrender to the Trustee of
the Book-Entry Certificates by the Clearing Agency, accompanied by registration
instructions from the Clearing Agency for registration, the Trustee shall
execute, authenticate and deliver the Definitive Certificates. None of the
Depositor, the Fiscal Agent or the Trustee shall be liable for any delay in
delivery of such instructions and may conclusively rely on, and shall be
protected in relying on, such instructions. Upon the issuance of Definitive
Certificates, all references herein to obligations imposed upon or to be
performed by the Clearing Agency shall be deemed to be imposed upon and
performed by the Trustee, to the extent applicable with respect to such
Definitive Certificates, and the Trustee shall recognize the Holders of
Definitive Certificates as Certificateholders hereunder.
(b) Distributions of principal and interest on the Definitive Certificates
shall be made by the Trustee directly to holders of Definitive Certificates in
accordance with the procedures set forth in this Agreement.
ARTICLE IV
ADVANCES
Section 4.1 P&I Advances by Master Servicer.
(a) On or before 1:00 p.m., New York City time, on each P&I Advance Date,
the Master Servicer shall either (i) deposit into the Distribution Account (or,
to the extent made to cover unpaid Servicing Fees, in the Collection Account)
from its own funds an amount equal to the aggregate amount of P&I Advances, if
any, to be made in respect of the related Distribution Date, (ii) apply amounts
held in the Collection Account for future distribution to Certificateholders in
subsequent months in discharge of any such obligation to make P&I Advances, or
(iii) make P&I Advances in the form of any combination of (i) and (ii)
aggregating the total amount of P&I Advances to be made; provided that, if Late
Collections (net of related Workout Fees) of the delinquent principal and
interest payments for which P&I Advances are to be made for the related
Distribution Date, are on deposit in the Collection Account and available to
make such Advances, the Master Servicer shall utilize such Late Collections to
make such Advances pursuant to clause
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(ii) above. Any amounts held in the Collection Account for future distribution
and so used to make P&I Advances shall be appropriately reflected in the Master
Servicer's records and replaced by the Master Servicer by deposit in the
Collection Account on or before the next succeeding Determination Date (to the
extent not previously replaced through the deposit of Late Collections of the
delinquent principal and interest in respect of which such P&I Advances were
made). If, as of 3:00 p.m., New York City time, on any P&I Advance Date, the
Master Servicer shall not have made any P&I Advance required to be made on such
date pursuant to this Section 4.1(a) (and shall not have delivered to the
Trustee the requisite Officer's Certificate and documentation related to a
determination of nonrecoverability of a P&I Advance), then the Trustee shall
provide notice of such failure to a Servicing Officer of the Master Servicer by
facsimile transmission sent to telecopy no. (312) 845-8617 (or such alternative
number provided by the Master Servicer to the Trustee in writing) and by
telephone at telephone no. (312) 845-8582 (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.
(b) The aggregate amount of P&I Advances to be made by the Master Servicer
in respect of the Mortgage Loans (including without limitation Balloon Mortgage
Loans delinquent as to their respective Balloon Payments and REO Mortgage Loans)
for any Distribution Date shall equal, subject to Section 4.4 below, the
aggregate of all Monthly Payments (other than Balloon Payments) and any Assumed
Monthly Payments, in each case net of related Workout Fees payable hereunder,
that were due or deemed due, as the case may be, in respect thereof on their
respective Due Dates during the related Collection Period and that were not paid
by or on behalf of the related Mortgagors or otherwise collected as of the close
of business on the last day of the related Collection Period; provided that, if
an Appraisal Reduction exists with respect to any Required Appraisal Loan, then,
in the event of subsequent delinquencies thereon, the P&I Advance in respect of
such Required Appraisal Loan for the related Distribution Date shall be reduced
to equal the product of (i) the amount of the P&I Advance for such Required
Appraisal Loan for such Distribution Date without regard to this proviso,
multiplied by (ii) a fraction, expressed as a percentage, the numerator of which
is equal to the Stated Principal Balance of such Required Appraisal Loan
immediately prior to such Distribution Date, net of the related Appraisal
Reduction, if any, and the denominator of which is equal to the Stated Principal
Balance of such Required Appraisal Loan immediately prior to such Distribution
Date.
Section 4.2 Servicing Advances.
(a) The Master Servicer, the Special Servicer, the Trustee and the Fiscal
Agent shall each make Servicing Advances to the extent provided in this
Agreement, except to the extent that the Master Servicer, the Trustee or the
Fiscal Agent determines, as applicable, in accordance with Section 4.4 below,
that any such Advance would be a Nonrecoverable Advance. Such determination
shall be conclusive and binding on the Trustee and the Certificateholders.
(b) No more frequently than once per calendar month, the Special Servicer
may require the Master Servicer, and the Master Servicer shall be obligated,
subject to the second following paragraph, to reimburse the Special Servicer for
any Servicing Advances made by but not previously reimbursed to the Special
Servicer, and to pay the Special Servicer interest thereon at the Advance Rate
from the date made to, but not including, the date of reimbursement. Such
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reimbursement and any accompanying payment of interest shall be made within ten
(10) days of the request therefor by wire transfer of immediately available
funds to an account designated by the Special Servicer. Upon the Master
Servicer's reimbursement to the Special Servicer of any Servicing Advance and
payment to the Special Servicer of interest thereon, all in accordance with this
Section 4.2(b), the Master Servicer shall for all purposes of this Agreement be
deemed to have made such Servicing Advance at the same time as the Special
Servicer originally made such Advance, and accordingly, the Master Servicer
shall be entitled to reimbursement for such Advance, together with interest
thereon, at the same time, in the same manner and to the same extent as the
Master Servicer would otherwise have been entitled if it had actually made such
Servicing Advance.
Notwithstanding anything to the contrary contained in this Agreement, if
the Special Servicer is required under this Agreement to make any Servicing
Advance but does not desire to do so, the Special Servicer may, in its sole
discretion, request that the Master Servicer make such Advance, such request to
be made in writing and in a timely manner that does not materially and adversely
affect the interests of any Certificateholder and to be accompanied by such
additional information regarding the circumstances surrounding such Advance as
the Master Servicer may reasonably request. Subject to the following paragraph,
the Master Servicer shall have the obligation to make any such Servicing Advance
that it is requested by the Special Servicer to make within ten (10) days of the
Master Servicer's receipt of such request. The Special Servicer shall be
relieved of any obligations with respect to an Advance that it requests the
Master Servicer to make (regardless of whether or not the Master Servicer shall
make such Advance). The Master Servicer shall be entitled to reimbursement for
any Servicing Advance made by it at the direction of the Special Servicer,
together with Advance Interest thereon, at the same time, in the same manner and
to the same extent as the Master Servicer is entitled with respect to any other
Servicing Advance made thereby.
Notwithstanding the foregoing provisions of this Section 4.2(b), the Master
Servicer shall not be required to make at the Special Servicer's direction, or
to reimburse the Special Servicer for, any Servicing Advance if the Master
Servicer determines (in its good faith and reasonable judgment) that the
Servicing Advance which the Special Servicer is directing the Master Servicer to
make or to reimburse to the Special Servicer hereunder, although not
characterized by the Special Servicer as a Nonrecoverable Servicing Advance, is
or would be, if made, a Nonrecoverable Servicing Advance. The Master Servicer
shall notify the Special Servicer in writing of such determination. Such notice
shall not obligate the Special Servicer to make any such proposed Servicing
Advance. The Special Servicer shall promptly provide the Master Servicer with
any information that comes into its possession that constitutes evidence that
any future Advances made with respect to any Mortgage Loan or REO Property would
be Nonrecoverable Advances.
Section 4.3 Advances by Trustee and Fiscal Agent.
(a) To the extent that the Master Servicer fails to make a P&I Advance by
11:00 a.m. on the Business Day following the related P&I Advance Date (other
than a P&I Advance that the Master Servicer determines is a Nonrecoverable
Advance), the Trustee shall make such P&I Advance unless the Trustee determines
that such P&I Advance, if made, would
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be a Nonrecoverable Advance. To the extent that the Trustee is required
hereunder to make P&I Advances, it shall deposit the amount thereof in the
Distribution Account (or, to the extent made to cover unpaid Servicing Fees, in
the Collection Account) on the relevant Distribution Date.
(b) To the extent that the Trustee fails to make a P&I Advance required to
be made by the Trustee hereunder on any Distribution Date (other than a P&I
Advance that the Trustee determines is a Nonrecoverable Advance), the Fiscal
Agent will advance such P&I Advance unless the Fiscal Agent determines that any
such P&I Advance, if made, would be a Nonrecoverable Advance. To the extent that
the Fiscal Agent is required hereunder to make P&I Advances, it shall deposit
the amount thereof in the Distribution Account (or, to the extent made to cover
unpaid Servicing Fees, in the Collection Account) on such Distribution Date.
(c) To the extent that the Master Servicer fails to make a Servicing
Advance by the date such Servicing Advance is required to be made (other than a
Servicing Advance that the Master Servicer determines is a Nonrecoverable
Advance), and a Responsible Officer of the Trustee receives notice thereof the
Trustee shall make such Servicing Advance promptly, but in any event, not later
than five Business Days after notice thereof, unless the Trustee determines that
such Servicing Advance, if made, would be a Nonrecoverable Advance.
(d) To the extent that the Trustee fails to make a Servicing Advance
required to be made by the Trustee hereunder by the later of (i) the date such
Servicing Advance is required to be made and (ii) five Business Days after the
date the Trustee knows or should know, pursuant to subsection (c) above, that
such Servicing Advance has not been made by the Master Servicer (other than a
Servicing Advance that the Trustee determines is a Nonrecoverable Advance), the
Fiscal Agent will advance such Servicing Advance, unless the Fiscal Agent
determines that such Servicing Advance, if made, would be a Nonrecoverable
Advance.
The initial Trustee's failure to make any Advance required to be made by it
hereunder shall not constitute a default by the initial Trustee hereunder if the
initial Fiscal Agent makes such Advance.
Section 4.4 Evidence of Nonrecoverability. Notwithstanding anything herein
to the contrary, no Advance shall be required to be made hereunder if such
Advance would, if made, constitute a Nonrecoverable Advance. In addition,
Nonrecoverable Advances shall be reimbursable pursuant to Section 5.2 out of
general collections on the Mortgage Loans and REO Properties on deposit in the
Collection Account. The determination by the Master Servicer, the Special
Servicer or, if applicable, 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 by an Officer's Certificate delivered
promptly (and, in any event, in the case of a proposed P&I Advance to be made by
the Master Servicer, no less than one Business Day prior to the related P&I
Advance Date) to the Trustee (or, if applicable, retained thereby) and the
Depositor, setting forth the basis for such determination, together with (if
such determination is prior to the liquidation of the related Mortgage Loan or
REO Property) a copy of an Appraisal or internal evaluation of the related
Mortgaged Property or REO Property, as the case may be, which shall have been
performed within the twelve months preceding such determination, and further
accompanied by any other information that the Master Servicer or the
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Special Servicer may have obtained and that supports such determination. If such
an Appraisal or internal evaluation shall not have been required and performed
pursuant to the terms of this Agreement, the Master Servicer or the Special
Servicer, as the case may be, may, subject to its reasonable and good faith
determination that such Appraisal will demonstrate the nonrecoverability of the
related Advance, obtain an Appraisal for such purpose at the expense of the
Trust payable out of the Collection Account. The Trustee and the Fiscal Agent
shall each be entitled to rely on any determination of nonrecoverability that
may have been made by the Master Servicer or the Special Servicer with respect
to a particular Advance, and the Master Servicer shall be entitled to rely on
any determination of nonrecoverability that may have been made by the Special
Servicer with respect to a particular Advance.
Section 4.5 Advance Interest. The Master Servicer, the Special Servicer,
the Trustee and the Fiscal Agent shall each be entitled to receive interest at
the Advance Rate in effect from time to time, accrued on the amount of each
Advance made thereby (out of its own funds) for so long as such Advance is
outstanding (or, if any P&I Advance is required to be made in respect of a
delinquent Monthly Payment on any Mortgage Loan prior to the end of the grace
period for such Monthly Payment, for so long as such P&I Advance is outstanding
following the end of such grace period), payable: first, out of Penalty Charges
received on the Mortgage Loan (including, without limitation, an REO Mortgage
Loan as to which such P&I Advance was made); and, then, once such Advance has
been reimbursed, out of general collections on the Mortgage Loans and REO
Properties.
Section 4.6 Fiscal Agent Termination Event. "Fiscal Agent Termination
Event," wherever used herein, means any one of the following events:
(i) Any failure by the Fiscal Agent to remit to the Trustee when due
any required Advances; or
(ii) A decree or order of a court or agency or supervisory authority
having jurisdiction in the premises in an involuntary case under any
present or future federal or state bankruptcy, insolvency or similar law
for the appointment of a conservator, receiver, liquidator, trustee or
similar official in any bankruptcy, insolvency, readjustment of debt,
marshaling of assets and liabilities or similar proceedings, or for the
winding-up or liquidation of its affairs, shall have been entered against
the Fiscal Agent and such decree or order shall have remained in force
undischarged or unstayed for a period of 60 days; or
(iii) The Fiscal Agent shall consent to the appointment of a
conservator, receiver, liquidator, trustee or similar official in any
bankruptcy, insolvency, readjustment of debt, marshaling of assets and
liabilities or similar proceedings or relating to the Fiscal Agent or of or
relating to all or substantially all of its property; or
(iv) The Fiscal Agent shall admit in writing its inability to pay its
debts generally as they become due, file a petition to take advantage of
any applicable bankruptcy, insolvency or reorganization statute, make an
assignment for the benefit of its creditors, voluntarily suspend payment of
its obligations, or take any corporate action
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in furtherance of the foregoing; or
(v) Either Rating Agency shall indicate its intent to reduce, qualify
or withdraw the outstanding rating of any Class of Certificates because the
prospective financial condition or capacity to make Advances of the Fiscal
Agent is insufficient to maintain such rating; or
(vi) The long-term unsecured debt of the Fiscal Agent is rated below
"AA" or "Aa2", as applicable, by either Rating Agency.
Section 4.7 Procedure Upon Termination Event.
(a) On the date specified in a written notice of termination given to the
Fiscal Agent pursuant to Section 7.6(c), all authority, power and rights of the
Fiscal Agent under this Agreement, whether with respect to the Mortgage Loans or
otherwise, shall terminate and a successor Fiscal Agent shall be appointed by
the Trustee, with the consent of the Depositor; provided that in no event shall
the termination of the Fiscal Agent be effective until Rating Agency
Confirmation shall have been obtained with respect to a successor fiscal agent.
The Fiscal Agent agrees to cooperate with the Trustee in effecting the
termination of the Fiscal Agent's responsibilities and rights hereunder as
Fiscal Agent.
(b) Notwithstanding the termination of its activities as Fiscal Agent, the
terminated Fiscal Agent shall continue to be entitled to reimbursement of its
Advances (with Advance Interest thereon) to the extent provided in Section 5.2
but only to the extent such reimbursement relates to the period up to and
including the date on which the Fiscal Agent's termination is effective. The
Fiscal Agent shall be reimbursed for all amounts owed to it hereunder on or
prior to the effective date of its termination from amounts on deposit in the
Collection Account.
Section 4.8 Merger or Consolidation of Fiscal Agent. Any Person into which
the Fiscal Agent may be merged or consolidated, or any Person resulting from any
merger, conversion, other change in form or consolidation to which the Fiscal
Agent shall be a party, or any Person succeeding to the business of the Fiscal
Agent, shall be the successor of the Fiscal Agent hereunder, without the
execution or filing of any paper or any further act on the part of any of the
parties hereto, anything herein to the contrary notwithstanding; provided that
(i) the successor to the Fiscal Agent or resulting Person shall have a net worth
of not less than $100,000,000, (ii) such successor or resulting Person shall be
satisfactory to the Trustee, (iii) such successor or resulting Person shall
execute and deliver to the Trustee an agreement, in form and substance
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 Fiscal Agent under this Agreement from and after
the date of such agreement, (iv) the Rating Agencies shall be given prior
written notice of the identity of the proposed successor or resulting Person and
the Rating Agencies shall have provided Rating Agency Confirmation, and (v) the
Fiscal Agent shall deliver to the Trustee an Officer's Certificate and an
Opinion of Counsel acceptable to the Trustee (which opinion shall be at the
expense of the Fiscal Agent) stating that all conditions precedent to such
action under this Section 4.8 have been completed and such action
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is permitted by and complies with the terms of this Section 4.8.
Section 4.9 Limitation on Liability of the Fiscal Agent and Others. Neither
the Fiscal Agent nor any of the directors, officers, employees, agents or
Controlling Persons of the Fiscal Agent shall be under any liability to the
Certificateholders, the Depositor, or the Trustee for any action taken or for
refraining from the taking of any action in good faith, using reasonable
business judgment, pursuant to this Agreement; provided that this provision
shall not protect the Fiscal Agent or any such person against any liability
which would otherwise be imposed by reason of willful misfeasance, bad faith or
negligence in its performance of duties under this Agreement. The Fiscal Agent
and any director, officer, employee or agent of the Fiscal Agent may rely in
good faith on any document of any kind prima facie properly executed and
submitted by any Person respecting any matters arising hereunder. The Fiscal
Agent shall not be under any obligation to appear in, prosecute or defend any
legal action which is not incidental to its obligations under this Agreement.
The provisions of this Section 4.9 shall survive the resignation or removal of
the Fiscal Agent and the termination of this Agreement.
Section 4.10 Indemnification of Fiscal Agent. The Fiscal Agent and each of
its directors, officers, employees and agents shall be indemnified and held
harmless by the Trust out of the Collection Account against any and all claims,
losses, penalties, fines, forfeitures, legal fees and related costs, judgments
and any other costs, liabilities, fees and expenses incurred in connection with
any legal action relating to this Agreement, other than any loss, liability or
expense incurred by reason of a breach on the part of the Fiscal Agent of any of
its representations, warranties or covenants contained herein or the Fiscal
Agent's willful misfeasance, bad faith or negligence in the performance of
duties hereunder. The Fiscal Agent shall immediately notify the Depositor and
the Trustee if a claim is made by a third party with respect to this Section
4.10 entitling the Fiscal Agent, its directors, officers, employees or agents to
indemnification hereunder, whereupon the Depositor shall assume the defense of
any such claim (with counsel reasonably satisfactory to the Fiscal Agent) and
pay out of the Collection Account all expenses in connection therewith,
including reasonable counsel fees, and promptly pay, discharge and satisfy out
of the Collection Account any judgment or decree which may be entered against it
or them in respect of such claim. Any failure to so notify the Depositor shall
not affect any rights the Fiscal Agent, its directors, officers, employees or
agents may have to indemnification under this Section 4.10, unless the
Depositor's defense of such claim is materially prejudiced thereby. The
indemnification provided herein shall survive the resignation or removal of the
Fiscal Agent and the termination of this Agreement.
ARTICLE V
COLLECTION ACCOUNT; DISTRIBUTION ACCOUNT;
CERTAIN TRUSTEE REPORTS
Section 5.1 Collection Account.
(a) The Master Servicer shall open, on or prior to the Closing Date, and
shall thereafter maintain a segregated account (the "Collection Account") solely
with respect to this
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Agreement, entitled "GMAC Commercial Mortgage Corporation, as Master Servicer
for LaSalle National Bank, as Trustee for the Holders of Morgan Stanley Capital
I Inc., Commercial Mortgage Pass-Through Certificates, Series 1997-C1,
Collection Account." The Collection Account shall be an Eligible Account.
(b) On or prior to the date the Master Servicer shall first deposit funds
in the Collection Account, the Master Servicer shall give to the Trustee prior
written notice of the name and address of the depository institution at which
the Collection Account is maintained and the account number of the Collection
Account. The Master Servicer shall take such actions as are necessary to cause
the depository institution holding the Collection Account to hold such account
in the name of the Master Servicer as provided in Section 5.1(a), subject to the
Master Servicer's right to direct payments and investments and its rights of
withdrawal under this Agreement.
(c) The Master Servicer shall deposit into the Collection Account on the
Business Day following receipt (or, in the case of unscheduled remittances of
principal or interest, on the Business Day following identification of the
proper application of such amounts), the following amounts received or paid by
it, other than in respect of interest and principal on the Mortgage Loans due on
or before the Cut-off Date which shall be remitted to the applicable Seller
(provided that the Master Servicer may retain amounts otherwise payable to the
Master Servicer (and, for so long as the Master Servicer and the Special
Servicer are the same Person, to the Special Servicer) as provided in Section
5.2(b) rather than deposit them into the Collection Account):
(i) Principal: all payments on account of principal, including,
without limitation, the principal component of Monthly Payments, any late
payments in respect thereof and any Principal Prepayments, on the Mortgage
Loans;
(ii) Interest: subject to subsection (d) hereof, all payments on
account of interest, including, without limitation, the interest component
of Monthly Payments, any late payments in respect thereof and any Default
Interest, on the Mortgage Loans;
(iii) Liquidation Proceeds: all Liquidation Proceeds with respect to
the Mortgage Loans, including, without limitation, REO Mortgage Loans;
(iv) Insurance Proceeds and Condemnation Proceeds: all Insurance
Proceeds and Condemnation Proceeds with respect to any Mortgaged Property
or REO Property (other than any such proceeds to be applied to the
restoration or repair of such property or released to the related Mortgagor
in accordance with applicable law, the terms of the related Mortgage Loan
or the Servicing Standard, in which case such proceeds shall be deposited
by the Master Servicer into an Escrow Account or released to the related
Mortgagor, as the case may be, and not deposited in the Collection
Account);
(v) Assumption Fees, Modification Fees, Late Fees and Prepayment
Premiums: All assumption fees, modification fees, Late Fees and Prepayment
Premiums with respect to the Mortgage Loans;
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(vi) REO Income: all REO Income (net of any expenses and fees paid
therefrom by the related property manager) in respect of any REO
Properties;
(vii) Investment Losses: any amounts required to be deposited by the
Master Servicer pursuant to Section 5.1(e) in connection with losses
realized on Eligible Investments with respect to funds held in the
Collection Account;
(viii) P&I Advances: that portion of each P&I Advance that represents
the Master Servicing Fee and, if applicable, the Special Servicing Fee;
(ix) Repurchase Proceeds and Substitution Shortfall Amounts: All
Repurchase Proceeds and payments of Substitution Shortfall Amounts with
respect to the Mortgage Loans, including, without limitation, the REO
Mortgage Loans; and
(x) Other: all other amounts required to be deposited in the
Collection Account pursuant to this Agreement.
If 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.
(d) Upon its receipt of any of the amounts described in clauses (i) through
(vi) of Section 5.1(c) with respect to any Mortgage Loan or REO Property, the
Special Servicer shall promptly, but in no event later than the Business Day
after receipt, remit such amounts to the Master Servicer for deposit into the
Collection Account in accordance with such Section 5.1(c), unless the Special
Servicer determines, consistent with the Servicing Standard, that a particular
item should not be deposited because of a restrictive endorsement or other
appropriate reason. With respect to any such amounts paid by check to the order
of the Special Servicer, the Special Servicer shall endorse such check to the
order of the Master Servicer and shall deliver promptly, but in no event later
than the Business Day after receipt, any such check to the Master Servicer by
overnight courier, unless the Special Servicer determines, consistent with the
Servicing Standard, that a particular item cannot be so endorsed and delivered
because of a restrictive endorsement or other appropriate reason. The Master
Servicer shall promptly inform the Special Servicer of the name, account number,
location and other necessary information concerning the Collection Account in
order to permit the Special Servicer to make deposits therein.
(e) Funds in the Collection Account may be invested and, if invested, shall
be invested by, and at the risk of, the Master Servicer in Eligible Investments
selected by the Master Servicer which shall mature, unless payable on demand,
not later than the Business Day immediately preceding the next Master Servicer
Remittance Date, and any such Eligible Investment shall not be sold or disposed
of prior to its maturity unless payable on demand. All such Eligible Investments
shall be made in the name of "LaSalle National Bank, as Trustee for the Holders
of the Morgan Stanley Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 1997-C1." None of the Depositor, the Mortgagors, the
Trustee or the Fiscal Agent shall be liable for any loss incurred on such
Eligible Investments.
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An amount equal to all income and gain realized from any such investment
(to the extent not needed to offset losses from other investments) shall be paid
to the Master Servicer as additional servicing compensation and shall be subject
to its withdrawal at any time from time to time. The amount of any losses
incurred in respect of any such investments shall be for the account of the
Master Servicer which shall deposit the amount of such loss (to the extent not
offset by income from other investments) in the Collection Account out of its
own funds no later than the next succeeding Master Servicer Remittance Date.
Except as expressly provided otherwise in this Agreement, if any default
occurs in the making of a payment due under any Eligible Investment, or if a
default occurs in any other performance required under any Eligible Investment,
the Trustee or the Master Servicer may take such action as may be appropriate to
enforce such payment or performance, including the institution and prosecution
of appropriate proceedings; provided, however, that if the Master Servicer shall
have deposited in the Collection Account an amount equal to all amounts due
under any such Eligible Investment (net of anticipated income or earnings
thereon that would have been payable to the Master Servicer as additional
servicing compensation), the Master Servicer shall have the sole right to
enforce such payment or performance, and the Trustee shall deliver to the Master
Servicer the certificate or other instrument evidencing such investment together
with any necessary document of transfer.
(f) Certain of the Mortgage Loans may provide for payment by the Mortgagor
to the Master Servicer of amounts to be used for payment of Escrow Payments for
the account of the Mortgagor. The Master Servicer shall deal with these amounts
in accordance with the Servicing Standard, applicable law and the terms of the
related Mortgage Loans.
Section 5.2 Application of Funds in the Collection Account.
(a) Monthly, on each Master Servicer Remittance Date, the Master Servicer
shall withdraw from the Collection Account and deliver to the Trustee for
deposit in the Distribution Account all amounts then on deposit in the
Collection Account that represent payments and other collections on or in
respect of the Mortgage Loans and any REO Properties that were received by the
Master Servicer or the Special Servicer through the end of the related
Collection Period, exclusive of any such payments and other collections that:
(i) constitute Monthly Payments due on a Due Date following the end of the
related Collection Period; (ii) are payable or reimbursable to any Person from
the Collection Account pursuant to clauses (i) through (xvi), inclusive, of
Section 5.2(b); and/or (iii) were deposited in the Collection Account in error.
The Trustee shall notify the Master Servicer (in a manner consistent with the
last sentence of Section 4.1(a)) if any such remittance is not received by 3:00
p.m., New York City time, on any Master Servicer Remittance Date. In addition,
on each P&I Advance Date, the Master Servicer is authorized (or, to the extent
provided in Section 4.1, required) to apply certain amounts held in the
Collection Account for future distribution to Certificateholders in subsequent
months and certain Late Collections, all as more particularly specified in
Section 4.1, to make required P&I Advances on such date.
(b) The Master Servicer may, from time to time, also make withdrawals from
the Collection Account for any of the following purposes:
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(i) Servicing Fees: to pay to itself unpaid Master Servicing Fees
(exclusive of the portion thereof payable to the Trustee as Trustee Fees,
which shall be remitted to the Trustee for deposit in the Distribution
Account pursuant to the first sentence of Section 5.2(a)), and to the
Special Servicer unpaid Special Servicing Fees, in each case earned thereby
in respect of each Mortgage Loan, including, without limitation, each REO
Mortgage Loan, the Master Servicer's and the Special Servicer's respective
rights to payment pursuant to this clause (i) being limited to amounts
received or advanced on or in respect of such Mortgage Loan that are
allocable as a recovery of interest thereon;
(ii) Workout Fees and Liquidation Fees: to pay to the Special Servicer
earned and unpaid Workout Fees and Liquidation Fees to which it is entitled
pursuant to, and from the sources contemplated by, Section 8.10(b);
(iii) P&I Advances: to reimburse each of the Fiscal Agent, the Trustee
and the Master Servicer, in that order, for unreimbursed P&I Advances made
by each such Person, the Fiscal Agent's, Trustee's and Master Servicer's
respective rights to be reimbursed pursuant to this clause (iii) being
limited to amounts received that represent Late Collections of interest on
and principal of the particular Mortgage Loans, including, without
limitation, REO Mortgage Loans, with respect to which such P&I Advances
were made (in each case, net of related Workout Fees);
(iv) Servicing Advances: to reimburse each of the Fiscal Agent, the
Trustee, the Master Servicer and the Special Servicer, in that order, for
unreimbursed Servicing Advances made by each such Person, the Fiscal
Agent's, the Trustee's, the Master Servicer's and the Special Servicer's
respective rights to be reimbursed pursuant to this clause (iv) with
respect to any Mortgage Loan or REO Property being limited to, as
applicable, related payments, Liquidation Proceeds, Insurance Proceeds,
Condemnation Proceeds, Repurchase Proceeds, payments of Substitution
Shortfall Amounts and REO Income;
(v) Nonrecoverable Advances: to reimburse the Fiscal Agent, the
Trustee, the Master Servicer and the Special Servicer, in that order, out
of general collections on the Mortgage Loans and REO Properties, for
Nonrecoverable Advances made by each such Person;
(vi) Advance Interest: to pay the Fiscal Agent, the Trustee, the
Master Servicer and the Special Servicer, in that order, any unpaid Advance
Interest due and payable thereto, the Fiscal Agent's, the Trustee's, the
Master Servicer's and the Special Servicer 's respective rights to payment
pursuant to this clause (vi) being limited to Penalty Charges collected in
respect of the Mortgage Loan, including without limitation an REO Mortgage
Loan, as to which the related Advance was made;
(vii) More Advance Interest: at or following such time as it
reimburses itself, the Special Servicer, the Trustee or the Fiscal Agent,
as applicable, for any unreimbursed Advance pursuant to clause (iii), (iv)
or (v) above or pursuant to Section 8.3, and insofar as payment has not
already been made pursuant to clause (vi) above, to
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pay itself, the Special Servicer, the Trustee or the Fiscal Agent, as the
case may be, out of general collections on the Mortgage Loans and REO
Properties, any related Advance Interest accrued and payable on such
Advance;
(viii) Additional Master Servicing and Special Servicing Compensation:
to pay to each of itself and the Special Servicer all amounts deposited in
the Collection Account from time to time that constitute Additional Master
Servicing Compensation and Additional Special Servicing Compensation,
respectively;
(ix) Certain Environmental Costs: to pay out of general collections on
the Mortgage Loans and REO Properties, any costs and expenses incurred by
the Trust pursuant to Section 8.7(c);
(x) Operation, Management and Maintenance of REO Property: to pay
expenses related to the proper operation, management and maintenance of an
REO Property pursuant to Section 8.20, but only out of amounts (whether in
the form of REO Income, Liquidation Proceeds, Condemnation Proceeds or
Insurance Proceeds) relating to such REO Property;
(xi) REO Extensions: to pay, out of general collections on the
Mortgage Loans and REO Properties, the cost of obtaining any REO Extension
contemplated by Section 8.18(a) in respect of any REO Property;
(xii) General Reimbursements and Indemnities: to pay itself, the
Special Servicer, the Trustee, the Fiscal Agent, or any of their respective
directors, officers, employees and agents, as the case may be, out of
general collections on the Mortgage Loans and REO Properties, pro rata
based on their respective entitlements, any amounts payable to any such
Person pursuant to any of Sections 4.10, 7.11, 8.15, 8.26 and 8.27;
(xiii) Legal Advice: to pay, out of general collections on the
Mortgage Loans and REO Properties, for (A) the cost of the Opinions of
Counsel contemplated by Sections 8.7(b)(ii), 8.19(a) and 13.13, (B) the
cost of any other Opinion of Counsel contemplated by this Agreement which
is specifically identified as an expense of the Trust and (C) the cost of
the advice of counsel contemplated by Section 8.20(a);
(xiv) Deleted Mortgage Loans: to any Seller or other appropriate
Person, with respect to each Mortgage Loan or REO Property, if any,
previously purchased or replaced by such Person pursuant to or as
contemplated by this Agreement, all amounts received on such Mortgage Loan
subsequent to the date of purchase;
(xv) Taxes: to pay any and all federal, state and local taxes imposed
on REMIC I, REMIC II or REMIC III or on the assets or transactions of any
such REMIC Pool, together with all incidental costs and expenses, and any
and all reasonable expenses relating to tax audits, if and to the extent
that either (A) none of the Trustee, the Fiscal Agent, the Master Servicer
or the Special Servicer is liable therefor pursuant to Section 12.1(k), or
(B) any such Person that may be so liable has failed to make the required
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payment;
(xvi) Other Expenses of Trust: to pay to the Person entitled thereto
any amounts specified herein to be expenses of the Trust, the payment of
which is not more specifically provided for in any prior clause of this
Section 5.2(b);
(xvii) Correction of Errors: to withdraw funds deposited in the
Collection Account in error; and
(xviii) Clear and Terminate: to clear and terminate the Collection
Account in connection with a termination of the Trust pursuant to Section
10.1.
The Master Servicer shall pay to or at the direction of each of the
Depositor, the Special Servicer, the Trustee and the Fiscal Agent from the
Collection Account amounts permitted to be paid therefrom to such Person (or to
third parties in respect of matters that are such Person's responsibility or
under such Person's control) promptly upon receipt of a certificate of, as
applicable, an Authorized Officer of the Depositor, a Special Servicing Officer
of the Special Servicer or a Responsible Officer of the Trustee or the Fiscal
Agent, describing the item and amount to which the Depositor, the Special
Servicer, the Trustee or the Fiscal Agent (or such third party), as the case may
be, is entitled. The Master Servicer may rely conclusively on any such
certificate and shall have no duty to re-calculate the amounts stated therein.
The Master Servicer shall keep and maintain a separate accounting for each
Mortgage Loan for the purpose of justifying any withdrawal from the Collection
Account.
Section 5.3 Distribution Account.
(a) The Trustee shall establish, on or prior to the Closing Date, and
thereafter maintain in the name of the Trustee, a segregated account (the
"Distribution Account") solely with respect to this Agreement, to be held in
trust for the benefit of the holders of interests in the Trust until disbursed
pursuant to the terms of this Agreement, entitled: "LaSalle National Bank, as
trustee, in trust for the benefit of the Holders of Morgan Stanley Capital I
Inc., Commercial Mortgage Pass-Through Certificates, Series 1997-C1,
Distribution Account." The Distribution Account shall be an Eligible Account.
(b) The Trustee shall deposit into the Distribution Account on the Business
Day received all moneys remitted by the Master Servicer pursuant to Section
5.2(a) of this Agreement, together with (i) all P&I Advances and Compensating
Interest Payments made by the Master Servicer and (ii) any reimbursements or
indemnifications of the Trust made by any party hereto or any other Person.
Funds in the Distribution Account shall not be invested. The Distribution
Account shall be held separate and apart from and shall not be commingled with
any other monies of or held in trust by the Trustee, including, without
limitation, other monies of the Trustee held under this Agreement.
(c) The Trustee shall make withdrawals from the Distribution Account only
for the following purposes:
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(i) to withdraw amounts deposited in the Distribution Account in error
and pay such amounts to the Persons entitled thereto;
(ii) to pay itself unpaid Trustee Fees out of that portion of the
Master Servicing Fees deposited in the Distribution Account;
(iii) to make distributions to the Certificateholders pursuant to
Section 6.4; and
(iv) to clear and terminate the Distribution Account in connection
with a termination of the Trust pursuant to Section 10.1.
Section 5.4 Trustee Reports; Access to Information.
(a) Based on (and to the extent of the information contained in) the Master
Servicer Remittance Report and the report pursuant to Section 8.14(a) provided
to the Trustee by the Master Servicer (no later than the Report Date), on each
Distribution Date, the Trustee shall deliver or cause to be delivered by first
class mail (or such other medium as the Depositor shall reasonably request, the
incremental cost of which shall be paid in advance by the recipient thereof), to
each Certificateholder, the Rating Agencies, the Master Servicer, the Special
Servicer, each Underwriter, the Depositor and the Operating Adviser (and, upon
request and written certification as to its beneficial ownership interest in the
Book-Entry Certificates, to any Certificate Owner): (i) a Monthly
Certificateholder Report (substantially in the form of Exhibit F-1); and (ii) a
report containing information regarding the Mortgage Loans as of the end of the
related Collection Period, which report will contain substantially the
categories of information regarding the Mortgage Loans set forth in Appendix I
and Appendix II to the Prospectus Supplement, will be presented in a tabular
format substantially similar to the respective format utilized in such Appendix
I and Appendix II. The report referred to in clause (ii) of the preceding
sentence shall be updated from time to time within a reasonable period after the
requisite information is available. The Trustee shall be entitled, in the
absence of manifest error, to conclusively rely on any such information provided
to it by the Master Servicer or the Special Servicer and shall have no
obligation to verify any such information.
(b) The Trustee shall provide or cause to be provided to the Depositor, the
Master Servicer and the Special Servicer, and to the OTS, the FDIC, and any
other federal or state banking or insurance regulatory authority that may
exercise authority over any Certificateholder, access to the Mortgage Files and
any other documentation regarding the Mortgage Loans and the Trust Fund within
its control which may be required by this Agreement or by applicable law. Such
access shall be afforded without charge but only upon reasonable prior written
request and during normal business hours at the offices of the Trustee
designated by it.
(c) Within a reasonable period of time after the end of each calendar year,
the Trustee shall send to each Person who at any time during the calendar year
was a Certificateholder of record, a report summarizing the items specified in
clauses (i), (ii) and (x) of the definition of Monthly Certificateholder Report
and provided to Certificateholders pursuant to this Section 5.4, aggregated for
such calendar year or the applicable portion thereof during which such Person
was
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as Certificateholder, together with such other customary information as the
Trustee deems may be necessary or desirable for such Holders to prepare their
federal income tax returns.
(d) The Trustee shall make available to Persons with an account number on
the Trustee's ASAP (Automatic Statements Accessed by Phone) System, the reports
described in Section 5.4(a) and a summary report of Certificate Factors via
automated facsimile. The Trustee shall make available, upon request, to
Certificateholders, Certificate Owners identified to the Trustee in accordance
with subsection (g) below, the Depositor, the Underwriter, the Master Servicer
and the Special Servicer account numbers on the Trustee's ASAP System. In
addition, if the Depositor so directs the Trustee and on terms acceptable to the
Trustee, the Trustee shall make available through its electronic bulletin board
system, on a confidential basis, such information related to the Mortgage Loans
as the Depositor may reasonably request. A directory has been set up on the
bulletin board in which an electronic file is stored containing monthly servicer
data. All files shall be password protected. Passwords to each file shall be
released by the Trustee, upon request, to Certificateholders, Certificate Owners
identified to the Trustee in accordance with subsection (g) below, the
Depositor, the Underwriter, the Master Servicer and the Special Servicer.
(e) The Trustee shall make available at its Corporate Trust Office, during
normal business hours, upon reasonable advance written notice for review by any
Certificateholder, any Certificate Owner, any Prospective Investor, the
Underwriter, each Rating Agency, the Operating Adviser and the Depositor,
originals or copies of, among other things, the following items: (i) this
Agreement, the Mortgage Loan Purchase Agreements, the Additional Warranty
Agreements and any amendments thereto, to the extent such items are in the
Trustee's possession, (ii) all Monthly Certificateholder Reports and reports
pursuant to Section 5.4(a)(ii) delivered by the Trustee to Certificateholders
since the Closing Date and all Annual Reports, reports pursuant to Section
8.14(a), and Master Servicer Remittance Reports received by the Trustee from the
Master Servicer since the Closing Date, (iii) all Officer's Certificates
delivered to the Trustee since the Closing Date pursuant to Section 8.12, (iv)
all accountants' reports delivered to the Trustee since the Closing Date
pursuant to Section 8.13, (v) the most recent property inspection reports in the
possession of the Trustee in respect of each Mortgaged Property and REO
Property, (vi) the most recent Mortgaged Property/REO Property annual operating
statement and rent roll, if any, collected or otherwise obtained by or on behalf
of the Master Servicer or the Special Servicer and delivered to the Trustee,
(vii) any and all modifications, waivers and amendments of the terms of a
Mortgage Loan entered into by the Master Servicer and/or the Special Servicer
and delivered to the Trustee, (viii) any and all Officers' Certificates (and
attachments thereto) delivered to or retained by the Trustee to support any of
its, the Fiscal Agent's, the Special Servicer's or the Master Servicer's
determination that any Advance was not or, if made, would not be, recoverable,
(ix) any reports delivered by the Special Servicer to the Trustee pursuant to
Section 8.7(e), and (x) copies of the Prospectus and the Memorandum, as such may
have been amended or supplemented from time to time and delivered to the
Trustee. Copies (or computer diskettes or other digital or electronic copies of
such information if reasonably available in lieu of paper copies) of any and all
of the foregoing items shall be made available by the Trustee upon request;
provided, however, that the Trustee shall be permitted to require payment by the
requesting party (other than the Depositor, the Underwriter or either Rating
Agency) of a sum sufficient to cover the reasonable expenses actually incurred
by the Trustee of
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providing access or copies (including electronic or digital copies) of any such
information requested in accordance with the preceding sentence.
(f) The Trustee shall afford the Underwriter, the Rating Agencies, the
Depositor, the Fiscal Agent, the Master Servicer, the Special Servicer, the
Operating Adviser, any Certificateholder, any Certificate Owner, and any
Prospective Investor, upon reasonable notice and during normal business hours,
reasonable access to all relevant, non-attorney-client-privileged records and
documentation, including without limitation information delivered by the Master
Servicer or the Special Servicer to the Trustee pursuant to Section 8.16,
regarding the Mortgage Loans, any REO Properties and all other relevant matters
relating to this Agreement, and access to Responsible Officers of the Trustee.
Copies (or computer diskettes or other digital or electronic copies of such
information if reasonably available in lieu of paper copies) of any and all of
the foregoing items shall be made available by the Trustee upon request;
provided, however, that the Trustee shall be permitted to require payment by the
requesting party (other than the Depositor, the Master Servicer, the Special
Servicer, the Underwriter or either Rating Agency) of a sum sufficient to cover
the reasonable expenses actually incurred by the Trustee of providing access or
copies (including electronic or digital copies) of any such information
requested in accordance with the preceding sentence.
(g) In connection with providing access to or copies of the items described
in subsections (d), (e) and (f) of this Section 5.4, the Trustee may require (a)
in the case of Certificate Owners, a written confirmation executed by the
requesting Person, in form reasonably satisfactory to the Trustee, generally to
the effect that such Person is a beneficial holder of Certificates, is
requesting the information solely for use in evaluating such Person's investment
in the Certificates and will otherwise keep such information confidential and
(b) in the case of Prospective Investors, a written confirmation executed by the
requesting Person, in form reasonably satisfactory to the Trustee, generally to
the effect that such Person is a prospective purchaser of a Certificate or a
beneficial ownership interest therein, is requesting the information solely for
use in evaluating a possible investment in Certificates and will otherwise keep
such information confidential. All Certificateholders, by the acceptance of
their Certificates, shall be deemed to have agreed to keep such information
confidential. Notwithstanding the foregoing provisions of this Section 5.4(g),
the Trustee shall have no responsibility for the accuracy, completeness or
sufficiency for any purpose of any information so made available or furnished by
it pursuant to subsections (d), (e) and (f) of this Section 5.4.
Section 5.5 Trustee Tax Reports. The Trustee shall perform all reporting
and other tax compliance duties that are the responsibility of each REMIC Pool
under the Code, the REMIC Provisions, or other compliance guidance issued by the
Internal Revenue Service or any state or local taxing authority. Consistent with
this Pooling and Servicing Agreement, the Trustee shall provide (i) to the
Internal Revenue Service or other Persons (including, but not limited to, any
Person that has transferred a Residual Certificate to a Disqualified
Organization or to an agent that has acquired a Residual Certificate on behalf
of a Disqualified Organization) such information as is necessary for the
application of any tax relating to the transfer of a Residual Certificate to any
Disqualified Organization and (ii) to the Certificateholders such information or
reports as are required by the Code or REMIC Provisions. The Master Servicer
shall on a timely basis provide the Trustee with such information concerning the
Mortgage Loans as is necessary for the
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preparation of the tax or information returns or receipts of each REMIC Pool as
the Trustee may reasonably request from time to time. The Special Servicer is
required to provide to the Master Servicer all information in its possession
with respect to the Specially Serviced Mortgage Loans and REO Properties in
order for the Master Servicer to comply with its obligations under this Section
5.5. The Trustee shall be entitled, in the absence of manifest error, to
conclusively rely on any such information provided to it by the Master Servicer
or the Special Servicer and shall have no obligation to verify any such
information.
ARTICLE VI
DISTRIBUTIONS
Section 6.1 Distributions Generally.
(a) All distributions made with respect to each Class on each Distribution
Date shall be allocated pro rata among the outstanding Certificates in such
Class based on their respective Percentage Interests. Except as otherwise
provided below, all such distributions with respect to each Class on each
Distribution Date shall be made to the Certificateholders of the respective
Class of record at the close of business on the related Record Date and shall be
made by wire transfer of immediately available funds to the account of any such
Certificateholder at a bank or other entity having appropriate facilities
therefor, if such Certificateholder shall have provided the Trustee with wiring
instructions on or before the related Record Date (which wiring instructions may
be in the form of a standing order applicable to all subsequent Distribution
Dates) or otherwise by check mailed to the address of such Certificateholder as
it appears in the Certificate Register. The final distribution on each
Certificate (determined without regard to any possible future reimbursement of
any Realized Loss or Expense Loss previously allocated to such Certificate) will
be made in like manner, but only upon presentation and surrender of such
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution. Any
distribution that is to be made with respect to a Certificate in reimbursement
of a Realized Loss or Expense Loss previously allocated thereto, which
reimbursement is to occur after the date on which such Certificate is
surrendered as contemplated by the preceding sentence, will be made by check
mailed to the address of the Certificateholder that surrendered such Certificate
at such address as last appeared in the Certificate Registrar or to any other
address of which the Trustee was subsequently notified in writing.
(b) Each distribution with respect to a Book-Entry Certificate shall be
paid to the Depository, as Holder thereof, and the Depository shall be
responsible for crediting the amount of such distribution to the accounts of its
Depository Participants in accordance with its normal procedures. Each
Participant shall be responsible for disbursing such distribution to the
Certificate Owners that it represents and to each Indirect Participant for which
it acts as agent. Each Participant and Indirect Participant shall be responsible
for disbursing funds to the Certificate Owners that it represents. None of the
Trustee, the Certificate Registrar, the Depositor, the Master Servicer or the
Special Servicer shall have any responsibility therefor except as otherwise
provided by this Agreement or applicable law.
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(c) The rights of the Certificateholders to receive distributions from the
proceeds of the Trust Fund in respect of their Certificates, and all rights and
interests of the Certificateholders in and to such distributions, shall be as
set forth in this Agreement. Neither the Holders of any Class of Certificates
nor any party hereto shall in any way be responsible or liable to the Holders of
any other Class of Certificates in respect of amounts properly previously
distributed on the Certificates. Distributions in reimbursement of Realized
Losses and Expense Losses previously allocated to a Class of Certificates shall
not constitute distributions of principal and shall not result in a reduction of
the related Class Principal Balance.
Section 6.2 REMIC I.
(a) On each Distribution Date, the Trustee shall be deemed to apply the
Available Distribution Amount for such date for the following purposes and in
the following order of priority:
(i) to pay interest to REMIC II in respect of the various REMIC I
Regular Interests, up to an amount equal to, and pro rata in accordance
with, all Uncertificated Distributable Interest for each such REMIC I
Regular Interest for such Distribution Date;
(ii) to pay principal to REMIC II in respect of the various REMIC I
Regular Interests, up to an amount equal to, and pro rata in accordance
with, in the case of each such REMIC I Regular Interest, the excess, if
any, of the Uncertificated Principal Balance of such REMIC I Regular
Interest outstanding immediately prior to such Distribution Date, over the
Stated Principal Balance of the related Mortgage Loan (including without
limitation an REO Mortgage Loan or, if applicable, a Replacement Mortgage
Loan), that will be outstanding immediately following such Distribution
Date; and
(iii) to reimburse REMIC II for any Realized Losses and Expense Losses
previously deemed allocated to the various REMIC I Regular Interests (with
interest), up to an amount equal to, and pro rata in accordance with, the
Loss Reimbursement Amount for each such REMIC I Regular Interest for such
Distribution Date.
(b) On each Distribution Date, the Trustee shall pay to the Holders of the
Class R-I Certificates that portion, if any, of the Available Distribution
Amount for such date that has not otherwise been deemed paid to REMIC II in
respect of the REMIC I Regular Interests pursuant to Section 6.1(a).
(c) On each Distribution Date, the Trustee shall be deemed to apply each
Prepayment Premium then on deposit in the Distribution Account and received
during or prior to the related Collection Period, to pay additional interest to
REMIC II in respect of the REMIC I Regular Interest that relates to the Mortgage
Loan (including without limitation an REO Mortgage Loan or, if applicable, a
Replacement Mortgage Loan) as to which such Prepayment Premium was received.
(d) All amounts (other than additional interest in the form of Prepayment
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Premiums) deemed paid to REMIC II in respect of the REMIC I Regular Interests
pursuant to this Section 6.2 on any Distribution Date is herein referred to as
the "REMIC II Distribution Amount" for such date.
Section 6.3 REMIC II.
(a) On each Distribution Date, the Trustee shall be deemed to apply 0.1% of
the REMIC II Distribution Amount (such 0.1% thereof, the "Sub-REMIC II
Distribution Amount") for such date for the following purposes and in the
following order of priority:
(i) to pay interest to REMIC III in respect of REMIC II Regular
Interests A-1A, A-1B, A-1C, A-2, LG1, LG2 and IO-2, up to an amount equal
to, and pro rata in accordance with, (A) in the case of each of REMIC II
Regular Interest A-1A, REMIC II Regular Interest A-1B, REMIC II Regular
Interest A-1C and REMIC II Regular Interest A-2, the amount of
Uncertificated Distributable Interest in respect of such REMIC II Regular
Interest for such Distribution Date, (B) in the case of each of REMIC II
Regular Interest LG1 and REMIC II Regular Interest LG2, 0.1% of the amount
of the Class IO-1 Share of the Uncertificated Distributable Interest in
respect of such REMIC II Regular Interest for such Distribution Date, and
(C) in the case of REMIC II Regular Interest IO-2, 0.1% of the amount of
the Uncertificated Distributable Interest in respect of such REMIC II
Regular Interest for such Distribution Date;
(ii) to pay principal to REMIC III: (A) from the Principal
Distribution Amount for Loan Group 1 for such Distribution Date, first in
respect of REMIC II Regular Interest A-1A, second in respect of REMIC II
Regular Interest A-1B, third in respect of REMIC II Regular Interest A-1C,
and fourth in respect of REMIC II Regular Interest A-2, in each case, up to
an amount equal to the lesser of (1) the then Uncertificated Principal
Balance of such REMIC II Regular Interest and (2) the remaining portion of
an amount equal to 0.1% of such Principal Distribution Amount; and (B) from
the Principal Distribution Amount for Loan Group 2 for such Distribution
Date, first in respect of REMIC II Regular Interest A-2, second in respect
of REMIC II Regular Interest A-1A, third in respect of REMIC II Regular
Interest A-1B, and fourth in respect of REMIC II Regular Interest A-1C, in
each case, up to an amount equal to the lesser of (1) the then
Uncertificated Principal Balance of such REMIC II Regular Interest and (2)
the remaining portion of an amount equal to 0.1% of such Principal
Distribution Amount; provided that, if the remaining portion of the
Sub-REMIC II Distribution Amount for such Distribution Date that is
distributable pursuant to this clause (ii), is less than 0.1% of the
Aggregate Principal Distribution Amount for such date, payments pursuant to
subclauses (A) and (B) of this clause (ii) shall be deemed made on a pro
rata basis in accordance with the relative sizes of the Principal
Distribution Amounts for the two Loan Groups for such Distribution Date;
(iii) to reimburse REMIC III for any Realized Losses and Expense
Losses previously deemed allocated to REMIC II Regular Interest A-1A, REMIC
II Regular Interest A-1B, REMIC II Regular Interest A-1C and REMIC II
Regular Interest A-2 (with interest), up to an amount equal to, and pro
rata as among such REMIC II Regular
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Interests in accordance with, the Loss Reimbursement Amount in respect of
each such REMIC II Regular Interest for such Distribution Date; and
(iv) to make payments to REMIC III in respect of REMIC II Regular
Interests B, C, D, E, F, G, H and J as contemplated below;
provided that, on each Distribution Date after the aggregate of the
Uncertificated Principal Balances of REMIC II Regular Interests B, C, D, E, F,
G, H and J has been reduced to zero, and in any event on the final Distribution
Date in connection with a termination of the Trust, the payments of principal to
be deemed made pursuant to clause (ii) above, will be deemed so made to REMIC
III in respect of REMIC II Regular Interests A-1A, A-1B, A-1C and A-2, up to an
amount equal to, and pro rata as among such REMIC II Regular Interests in
accordance with, the respective then Uncertificated Principal Balances of such
REMIC II Regular Interests, and without regard to the Principal Distribution
Amounts with respect to the two Loan Groups for such date.
On each Distribution Date, following the foregoing series of deemed
payments, the Trustee shall be deemed to apply the remaining portion, if any, of
the Sub-REMIC II Distribution Amount for such date that was deemed applied to
such payments, for the following purposes and in the following order of
priority:
(i) to pay interest to REMIC III in respect of REMIC II Regular
Interest B, up to an amount equal to all Uncertificated Distributable
Interest in respect of such REMIC II Regular Interest for such Distribution
Date;
(ii) to pay principal to REMIC III in respect of REMIC II Regular
Interest B, up to an amount equal to the lesser of (1) the then
Uncertificated Principal Balance of such REMIC II Regular Interest and (2)
an amount equal to 0.1% of the Aggregate Principal Distribution Amount for
such Distribution Date (net of any payments of principal deemed made to
REMIC III in respect of REMIC II Regular Interests A-1A, A-1B, A-1C and A-2
on such Distribution Date);
(iii) to reimburse REMIC III for any Realized Losses and Expense
Losses previously deemed allocated to REMIC II Regular Interest B (with
interest), up to an amount equal to the Loss Reimbursement Amount in
respect of such REMIC II Regular Interest for such Distribution Date;
(iv) to pay interest to REMIC III in respect of REMIC II Regular
Interest C, up to an amount equal to all Uncertificated Distributable
Interest in respect of such REMIC II Regular Interest for such Distribution
Date;
(v) to pay principal to REMIC III in respect of REMIC II Regular
Interest C, up to an amount equal to the lesser of (1) the then
Uncertificated Principal Balance of such REMIC II Regular Interest and (2)
an amount equal to 0.1% of the Aggregate Principal Distribution Amount for
such Distribution Date (net of any payments of principal deemed made to
REMIC III in respect of REMIC II Regular Interests A-1A, A-1B, A-1C, A-2
and B on such Distribution Date);
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(vi) to reimburse REMIC III for any Realized Losses and Expense Losses
previously deemed allocated to REMIC II Regular Interest C (with interest),
up to an amount equal to the Loss Reimbursement Amount in respect of such
REMIC II Regular Interest for such Distribution Date;
(vii) to pay interest to REMIC III in respect of REMIC II Regular
Interest D, up to an amount equal to all Uncertificated Distributable
Interest in respect of such REMIC II Regular Interest for such Distribution
Date;
(viii) to pay principal to REMIC III in respect of REMIC II Regular
Interest D, up to an amount equal to the lesser of (1) the then
Uncertificated Principal Balance of such REMIC II Regular Interest and (2)
an amount equal to 0.1% of the Aggregate Principal Distribution Amount for
such Distribution Date (net of any payments of principal deemed made to
REMIC III in respect of REMIC II Regular Interests A-1A, A-1B, A-1C, A-2, B
and C on such Distribution Date);
(ix) to reimburse REMIC III for any Realized Losses and Expense Losses
previously deemed allocated to REMIC II Regular Interest D (with interest),
up to an amount equal to the Loss Reimbursement Amount in respect of such
REMIC II Regular Interest for such Distribution Date;
(x) to pay interest to REMIC III in respect of REMIC II Regular
Interest E, up to an amount equal to all Uncertificated Distributable
Interest in respect of such REMIC II Regular Interest for such Distribution
Date;
(xi) to pay principal to REMIC III in respect of REMIC II Regular
Interest E, up to an amount equal to the lesser of (1) the then
Uncertificated Principal Balance of such REMIC II Regular Interest and (2)
an amount equal to 0.1% of the Aggregate Principal Distribution Amount for
such Distribution Date (net of any payments of principal deemed made to
REMIC III in respect of REMIC II Regular Interests A-1A, A-1B, A-1C, A-2,
B, C and D on such Distribution Date);
(xii) to reimburse REMIC III for any Realized Losses and Expense
Losses previously deemed allocated to REMIC II Regular Interest E (with
interest), up to an amount equal to the Loss Reimbursement Amount in
respect of such REMIC II Regular Interest for such Distribution Date;
(xiii) to pay interest to REMIC III in respect of REMIC II Regular
Interest F, up to an amount equal to all Uncertificated Distributable
Interest in respect of such REMIC II Regular Interest for such Distribution
Date;
(xiv) to pay principal to REMIC III in respect of REMIC II Regular
Interest F, up to an amount equal to the lesser of (1) the then
Uncertificated Principal Balance of such REMIC II Regular Interest and (2)
an amount equal to 0.1% of the Aggregate Principal Distribution Amount for
such Distribution Amount (net of any payments of principal deemed made to
REMIC III in respect of REMIC II Regular Interests A-1A, A-
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1B, A-1C, A-2, B, C, D and E on such Distribution Date);
(xv) to reimburse REMIC III for any Realized Losses and Expense Losses
previously deemed allocated to REMIC II Regular Interest F (with interest),
up to an amount equal to the Loss Reimbursement Amount in respect of such
REMIC II Regular Interest for such Distribution Date;
(xvi) to pay interest to REMIC III in respect of REMIC II Regular
Interest G, up to an amount equal to all Uncertificated Distributable
Interest in respect of such REMIC II Regular Interest for such Distribution
Date;
(xvii) to pay principal to REMIC III in respect of REMIC II Regular
Interest G, up to an amount equal to the lesser of (1) the then
Uncertificated Principal Balance of such REMIC II Regular Interest and (2)
an amount equal to 0.1% of the Aggregate Principal Distribution Amount for
such Distribution Amount (net of any payments of principal deemed made to
REMIC III in respect of REMIC II Regular Interests for A-1A, A- 1B, A-1C,
A-2, B, C, D, E and F on such Distribution Date);
(xviii) to reimburse REMIC III for any Realized Losses and Expense
Losses previously deemed allocated to REMIC II Regular Interest G (with
interest), up to an amount equal to the Loss Reimbursement Amount in
respect of such REMIC II Regular Interest for such Distribution Date;
(xix) to pay interest to REMIC III in respect of REMIC II Regular
Interest H, up to an amount equal to all Uncertificated Distributable
Interest in respect of such REMIC II Regular Interest for such Distribution
Date;
(xx) to pay principal to REMIC III in respect of REMIC II Regular
Interest H, up to an amount equal to the lesser of (1) the then
Uncertificated Principal Balance of such REMIC II Regular Interest and (2)
an amount equal to 0.1% of the Aggregate Principal Distribution Amount for
such Distribution Date (net of any payments of principal deemed made to
REMIC III in respect of REMIC II Regular Interests A-1A, A-1B, A-1C, A-2,
B, C, D, E, F and G on such Distribution Date);
(xxi) to reimburse REMIC III for any Realized Losses and Expense
Losses previously deemed allocated to REMIC II Regular Interest H (with
interest), up to an amount equal to the Loss Reimbursement Amount in
respect of such REMIC II Regular Interest for such Distribution Date;
(xxii) to pay interest to REMIC III in respect of REMIC II Regular
Interest J, up to an amount equal to all Uncertificated Distributable
Interest in respect of such REMIC II Regular Interest for such Distribution
Date;
(xxiii) to pay principal to REMIC III in respect of REMIC II Regular
Interest J, up to an amount equal to the lesser of (1) the then
Uncertificated Principal Balance of such REMIC II Regular Interest and (2)
an amount equal to 0.1% of the
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Aggregate Principal Distribution Amount for such Distribution Amount (net
of any payments of principal deemed made to REMIC III in respect of REMIC
II Regular Interests A-1A, A-1B, A-1C, A-2, B, C, D, E, F, G and H on such
Distribution Date); and
(xxiv) to reimburse REMIC III for any Realized Losses and Expense
Losses previously deemed allocated to REMIC II Regular Interest J (with
interest), up to an amount equal to the Loss Reimbursement Amount in
respect of such REMIC II Regular Interest for such Distribution Date;
provided that, on the final Distribution Date in connection with a termination
of the Trust, the payments of principal to be deemed made pursuant to any of
clauses (ii), (v), (viii), (xi), (xiv), (xvii), (xx) and (xxiii) above in
respect of REMIC II Regular Interests B, C, D, E, F, G, H and J, will be deemed
so made to REMIC III in respect of each such REMIC II Regular Interest, up to an
amount equal to the then Uncertificated Principal Balance of such REMIC II
Regular Interest, and without regard to the Aggregate Principal Distribution
Amount for such date.
On each Distribution Date, following the foregoing two series of deemed
payments, the Trustee shall be deemed to apply the entire remaining REMIC II
Distribution Amount (including without limitation any remaining portion of the
Sub-REMIC II Distribution Amount) for such date not otherwise deemed applied to
make such respective series of payments contemplated by the preceding two
paragraphs, for the following purposes and in the following order of priority:
(i) to pay interest to REMIC III in respect of REMIC II Regular
Interests LG1, LG2 and IO-2, up to an amount equal to, and pro rata in
accordance with, all Uncertificated Distributable Interest in respect of
each such REMIC II Regular Interest for such Distribution Date (net of any
portion of such interest deemed paid on such Distribution Date pursuant to
the foregoing provisions of this Section 6.3(a));
(ii) to pay principal to REMIC III: (A) in respect of REMIC II Regular
Interest LG1, up to an amount equal to the excess, if any, of (1) the then
Uncertificated Principal Balance of such REMIC II Regular Interest, over
(2) an amount equal to 99.9% of the aggregate Stated Principal Balance of
Loan Group 1 that will be outstanding immediately following such
Distribution Date; and (B) in respect of REMIC II Regular Interest LG2, up
to an amount equal to the excess, if any, of (1) the then Uncertificated
Principal Balance of such REMIC II Regular Interest, over (2) an amount
equal to 99.9% of the aggregate Stated Principal Balance of Loan Group 2
that will be outstanding immediately following such Distribution Date;
provided that, if the remaining portion of the REMIC II Distribution Amount
for such Distribution Date that is distributable pursuant to this clause
(ii), is less than the aggregate of the two excesses referred to in
subclauses (A) and (B) of this clause (ii), payments pursuant to this
clause (ii) in respect of REMIC II Regular Interest LG1 and REMIC II
Regular Interest LG2, respectively, shall be deemed made on a pro rata
basis in accordance with the relative sizes of such excesses; and
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(iii) to reimburse REMIC III for any Realized Losses and Expense
Losses previously deemed allocated to REMIC II Regular Interest LG1 and
REMIC II Regular Interest LG2 (with interest), up to an amount equal to,
and pro rata as between such REMIC II Regular Interests in accordance with,
the respective Loss Reimbursement Amounts in respect of such REMIC II
Regular Interests for such Distribution Date;
provided that, on the final Distribution Date in connection with a termination
of the Trust, the payments of principal to be deemed made pursuant to clause
(ii) above, will be deemed so made to REMIC III in respect of REMIC II Regular
Interests LG1 and LG2, up to an amount equal to, and pro rata as between such
REMIC II Regular Interests in accordance with, the respective then
Uncertificated Principal Balances of such REMIC II Regular Interests.
(b) On each Distribution Date, the Trustee shall pay to the Holders of the
Class R-II Certificates that portion, if any, of the REMIC II Distribution
Amount for such date that has not otherwise been deemed paid to REMIC III in
respect of the REMIC II Regular Interests pursuant to Section 6.3(a).
(c) On each Distribution Date, the Trustee shall be deemed to apply all
Prepayment Premiums then on deposit in the Distribution Account and received
during or prior to the related Collection Period, to pay additional interest to
REMIC III in respect of REMIC II Regular Interest LG1, in the case of each such
Prepayment Premium received with respect to a Group 1 Loan, and REMIC II Regular
Interest LG2, in the case of each such Prepayment Premium received with respect
to a Group 2 Loan.
(d) All amounts (other than additional interest in the form of Prepayment
Premiums) deemed paid to REMIC III in respect of the REMIC II Regular Interests
pursuant to this Section 6.3 on any Distribution Date is herein referred to as
the "REMIC III Distribution Amount" for such date.
Section 6.4 REMIC III.
(a) On each Distribution Date, following the deemed payments to REMIC III
in respect of the REMIC II Regular Interests on such date pursuant to Section
6.3, the Trustee shall withdraw from the Distribution Account the REMIC III
Distribution Amount for such Distribution Date and shall apply such amount for
the following purposes and in the following order of priority:
(i) to pay interest to the Holders of the respective Classes of Senior
Certificates, in an amount equal to, and pro rata in accordance with, all
Distributable Certificate Interest in respect of each such Class of
Certificates for such Distribution Date;
(ii) to pay principal: (A) from the Principal Distribution Amount for
Loan Group 1 for such Distribution Date, first to the Holders of the Class
A-1A Certificates, second to the Holders of the Class A-1B Certificates,
third to the Holders of the Class A-1C Certificates and fourth to the
Holders of the Class A-2 Certificates, in each case, up to an amount equal
to the lesser of (1) the then outstanding Class Principal Balance of such
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Class of Certificates and (2) the remaining portion, if any, of such
Principal Distribution Amount; and (B) from the Principal Distribution
Amount for Loan Group 2 for such Distribution Date, first to Holders of the
Class A-2 Certificates, second to the Holders of the Class A-1A
Certificates, third to the Holders of the Class A-1B Certificates and
fourth to the Holders of the Class A-1C Certificates, in each case, up to
an amount equal to the lesser of (1) the then outstanding Class Principal
Balance of such Class of Certificates and (2) the remaining portion, if
any, of such Principal Distribution Amount; provided that, if the remaining
portion of the REMIC III Distribution Amount for such Distribution Date
that is distributable pursuant to this clause (ii), is less than the
Aggregate Principal Distribution Amount for such date, payments pursuant to
subclauses (A) and (B) of this clause (ii) shall be made on a pro rata
basis in accordance with the relative sizes of the Principal Distribution
Amounts for the two Loan Groups for such Distribution Date;
(iii) to reimburse the Holders of the respective Classes of Class A
Certificates for any Realized Losses and Expense Losses previously deemed
allocated to such Classes of Certificates (with interest), up to an amount
equal to, and pro rata as among such Classes in accordance with, the
respective Loss Reimbursement Amounts in respect of such Classes of
Certificates for such Distribution Date; and
(iv) to make payments on the Subordinate and Residual Certificates as
provided below;
provided that, on each Distribution Date after the aggregate of the Class
Principal Balances of the Subordinate Certificates has been reduced to zero, and
in any event on the final Distribution Date in connection with a termination of
the Trust, the payments of principal to be made pursuant to clause (ii) above,
will be so made to the Holders of the respective Classes of Class A
Certificates, up to an amount equal to, and pro rata as among such Classes in
accordance with, the respective then outstanding Class Principal Balances of
such Classes of Certificates, and without regard to the Principal Distribution
Amounts with respect to the two Loan Groups for such date.
On each Distribution Date, following the foregoing series of payments on
the Senior Certificates, the Trustee shall apply the remaining portion, if any,
of the REMIC III Distribution Amount for such date for the following purposes
and in the following order of priority:
(i) to pay interest to the Holders of the Class B Certificates, up to
an amount equal to all Distributable Certificate Interest in respect of
such Class of Certificates for such Distribution Date;
(ii) if the Class Principal Balances of the Class A Certificates have
been reduced to zero, to pay principal to the Holders of the Class B
Certificates, up to an amount equal to the lesser of (A) the then
outstanding Class Principal Balance of such Class of Certificates and (B)
the remaining Aggregate Principal Distribution Amount for such Distribution
Date;
(iii) to reimburse the Holders of the Class B Certificates for
Realized
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Losses and Expense Losses, if any, previously deemed allocated to such
Class of Certificates (with interest), up to an amount equal to the Loss
Reimbursement Amount in respect of such Class of Certificates for such
Distribution Date;
(iv) to pay interest to the Holders of the Class C Certificates, up to
an amount equal to all Distributable Certificate Interest in respect of
such Class of Certificates for such Distribution Date;
(v) if the Class Principal Balances of the Class A and Class B
Certificates have been reduced to zero, to pay principal to the Holders of
the Class C Certificates, up to an amount equal to the lesser of (A) the
then outstanding Class Principal Balance of such Class of Certificates and
(B) the remaining Aggregate Principal Distribution Amount for such
Distribution Date;
(vi) to reimburse the Holders of the Class C Certificates for any
Realized Losses and Expenses Losses previously deemed allocated to such
Class of Certificates (with interest), up to an amount equal to the Loss
Reimbursement Amount in respect of such Class of Certificates for such
Distribution Date;
(vii) to pay interest to the Holders of the Class D Certificates, up
to an amount equal to all Distributable Certificate Interest in respect of
such Class of Certificates for such Distribution Date;
(viii) if the Class Principal Balances of the Class A, Class B and
Class C Certificates have been reduced to zero, to pay principal to the
Holders of the Class D Certificates, up to an amount equal to the lesser of
(A) the then outstanding Class Principal Balance of such Class of
Certificates and (B) the remaining Aggregate Principal Distribution Amount
for such Distribution Date;
(ix) to reimburse the Holders of the Class D Certificates for any
Realized Losses and Expense Losses previously deemed allocated to such
Class of Certificates (with interest), up to an amount equal to the Loss
Reimbursement Amount in respect of such Class of Certificates for such
Distribution Date;
(x) to pay interest to the Holders of the Class E Certificates, up to
an amount equal to all Distributable Certificate Interest in respect of
such Class of Certificates for such Distribution Date;
(xi) if the Class Principal Balances of the Class A, Class B, Class C
and Class D Certificates have been reduced to zero, to pay principal to the
Holders of the Class E Certificates, up to an amount equal to the lesser of
(A) the then outstanding Class Principal Balance of such Class of
Certificates and (B) the remaining Aggregate Principal Distribution Amount
for such Distribution Date;
(xii) to reimburse the Holders of the Class E Certificates for any
Realized Losses and Expense Losses previously deemed allocated to such
Class of Certificates (with
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interest), up to an amount equal to the Loss Reimbursement Amount in
respect of such Class of Certificates for such Distribution Date;
(xiii) to pay interest to the Holders of the Class F Certificates, up
to an amount equal to all Distributable Certificate Interest in respect of
such Class of Certificates for such Distribution Date;
(xiv) if the Class Principal Balances of the Class A, Class B, Class
C, Class D and Class E Certificates have been reduced to zero, to pay
principal to the Holders of the Class F Certificates, up to an amount equal
to the lesser of (A) the then outstanding Class Principal Balance of such
Class of Certificates and (B) the remaining Aggregate Principal
Distribution Amount for such Distribution Date;
(xv) to reimburse the Holders of the Class F Certificates for any
Realized Losses and Expense Losses previously deemed allocated to such
Class of Certificates (with interest), up to an amount equal to the Loss
Reimbursement Amount in respect of such Class of Certificates for such
Distribution Date;
(xvi) to pay interest to the Holders of the Class G Certificates, up
to an amount equal to all Distributable Certificate Interest in respect of
such Class of Certificates for such Distribution Date;
(xvii) if the Class Principal Balances of the Class A, Class B, Class
C, Class D, Class E and Class F Certificates have been reduced to zero, to
pay principal to the Holders of the Class G Certificates, up to an amount
equal to the lesser of (A) the then outstanding Class Principal Balance of
such Class of Certificates and (B) the remaining Aggregate Principal
Distribution Amount for such Distribution Date;
(xviii) to reimburse the Holders of the Class G Certificates for any
Realized Losses and Expense Losses previously deemed allocated to such
Class of Certificates (with interest), up to an amount equal to the Loss
Reimbursement Amount in respect of such Class of Certificates for such
Distribution Date;
(xix) to pay interest to the Holders of the Class H Certificates, up
to an amount equal to all Distributable Certificate Interest in respect of
such Class of Certificates for such Distribution Date;
(xx) if the Class Principal Balances of the Class A, Class B, Class C,
Class D, Class E, Class F and Class G Certificates have been reduced to
zero, to pay principal to the Holders of the Class H Certificates, up to an
amount equal to the lesser of (A) the then outstanding Class Principal
Balance of such Class of Certificates and (B) the remaining Aggregate
Principal Distribution Amount for such Distribution Date;
(xxi) to reimburse the Holders of the Class H Certificates for any
Realized Losses and Expense Losses previously deemed allocated to such
Class of Certificates (with interest), up to an amount equal to the Loss
Reimbursement Amount in respect of such
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Class of Certificates for such Distribution Date;
(xxii) to pay interest to the Holders of the Class J Certificates, up
to an amount equal to all Distributable Certificate Interest in respect of
such Class of Certificates for such Distribution Date;
(xxiii) if the Class Principal Balances of the Class A, Class B, Class
C, Class D, Class E, Class F, Class G and Class H Certificates have been
reduced to zero, to pay principal to the Holders of the Class J
Certificates, up to an amount equal to the lesser of (A) the then
outstanding Class Principal Balance of such Class of Certificates and (B)
the remaining Aggregate Principal Distribution Amount for such Distribution
Date;
(xxiv) to reimburse the Holders of the Class J Certificates for any
Realized Losses and Expense Losses previously deemed allocated to such
Class of Certificates (with interest), up to an amount equal to the Loss
Reimbursement Amount in respect of such Class of Certificates for such
Distribution Date; and
(xxv) to pay to the Holders of the Class R-III Certificates the
balance, if any, of the REMIC III Distribution Amount for such Distribution
Date;
provided that, on the final Distribution Date in connection with the termination
of the Trust, the payments of principal to be made pursuant to any of clauses
(ii), (v), (viii), (xi), (xiv), (xvii), (xx) and (xxiii) above with respect to
any Class of Subordinate Certificates, will be so made to the Holders thereof,
up to an amount equal to the entire then outstanding Class Principal Balance of
such Class of Certificates, and without regard to the Aggregate Principal
Distribution Amount for such date. References to "remaining Aggregate Principal
Distribution Amount" in any of clauses (ii), (v), (viii), (xi), (xiv), (xvii),
(xx) and (xxiii) above, in connection with the payments of principal to be made
to the Holders of any Class of Subordinate Certificates, shall be to the
Aggregate Principal Distribution Amount for such Distribution Date, net of any
payments of principal made in respect thereof to the Holders of each Class of
Principal Balance Certificates that have a higher Payment Priority.
(b) On each Distribution Date, the Trustee shall withdraw any amounts then
on deposit in the Distribution Account that represent Prepayment Premiums
collected in respect of Group 1 Loans during or prior to the related Collection
Period and shall distribute such amounts, in each case, subject to available
funds, as additional interest, as follows: The Holders of the respective Classes
of Principal Balance Certificates then entitled to distributions of principal
from the Principal Distribution Amount in respect of Loan Group 1 for such
Distribution Date (other than, if applicable, the Class A-2 Certificates), will
be entitled to an aggregate amount (allocable among such Classes, if more than
one, as described below) equal to the product of (i) the amount of the subject
Prepayment Premium, multiplied by (ii) the lesser of (A) 25% and (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 Certificates then outstanding (or, in the case of two or more Classes
of Class A Certificates, the one with the earliest payment priority), over the
relevant Discount Rate (as defined below), and the denominator of which is equal
to the excess, if any, of the Mortgage Rate for the prepaid Group
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1 Loan, over the relevant Discount Rate. If there is more than one Class of
Principal Balance Certificates (other than the Class A-2 Certificates) entitled
to distributions of principal from the Principal Distribution Amount for Loan
Group 1 for 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 sizes of such distributions of principal. Any
portion of such Prepayment Premium that is not so distributed to the Holders of
such Principal Balance Certificates will be distributed to the Holders of the
Class IO-1 Certificates.
On each Distribution Date, the Trustee shall withdraw any amounts then on
deposit in the Distribution Account that represent Prepayment Premiums collected
in respect of Group 2 Loans during or prior to the related Collection Period and
shall distribute such amounts, as additional interest, to the Holders of the
Class IO-2 Certificates.
For purposes of the foregoing, the "Discount Rate" is the rate which, when
compounded monthly, is equivalent to the Treasury Rate when compounded
semi-annually. The "Treasury Rate" is the yield calculated by the linear
interpolation of the yields, as reported in Federal Reserve Statistical Release
H.15--Selected Interest Rates under the heading "U.S. government
securities/Treasury constant maturities" for the week ending prior to the date
of the relevant principal prepayment, of U.S. Treasury constant maturities with
a maturity date (one longer and one shorter) most nearly approximating the
maturity date 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.
(c) All of the foregoing distributions to be made from the Distribution
Account on any Distribution Date with respect to the REMIC III Certificates
shall be deemed made from the payments deemed made to REMIC III in respect of
the REMIC II Regular Interests on such Distribution Date pursuant to Section
6.3.
Section 6.5 Allocation of Realized Losses and Expense Losses.
(a) On each Distribution Date, following the deemed distributions to be
made in respect of the REMIC I Regular Interests pursuant to Section 6.2, the
Uncertificated Principal Balance of each REMIC I Regular Interest (after taking
account of such deemed distributions) shall be reduced to equal the Stated
Principal Balance of the related Mortgage Loan (including without limitation an
REO Mortgage Loan or, if applicable, a Replacement Mortgage Loan) that will be
outstanding immediately following such Distribution Date. Such reductions shall
be deemed to be an allocation of Realized Losses and Expense Losses.
(b) On each Distribution Date, following the payments deemed to be made to
REMIC III in respect of the REMIC II Regular Interests on such date pursuant to
Section 6.3, the Trustee shall determine: (i) the amount, if any, by which (A)
the then Uncertificated Principal Balance of REMIC II Regular Interest LG1,
exceeds (B) an amount equal to 99.9% of the aggregate Stated Principal Balance
of Loan Group 1 that will be outstanding immediately following such Distribution
Date; and (ii) the amount, if any, by which (A) the then Uncertificated
Principal Balance of REMIC II Regular Interest LG2, exceeds (B) an amount equal
to 99.9% of the aggregate Stated Principal Balance of Loan Group 2 that will be
outstanding immediately
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following such Distribution Date. If any such excess exists with respect to
either such REMIC II Regular Interest, then the Uncertificated Principal Balance
of such REMIC II Regular Interest shall be reduced until such excess no longer
exists. All such reductions in the Uncertificated Principal Balances of such
REMIC II Regular Interests shall be deemed to be allocations of Realized Losses
and Expense Losses.
On each Distribution Date, following the payments deemed to be made to
REMIC III in respect of the REMIC II Regular Interests on such date pursuant to
Section 6.3, the Trustee shall also determine the amount, if any, by which (i)
the then aggregate Uncertificated Principal Balance of REMIC II Regular
Interests A-1A, A-1B, A-1C, A-2, B, C, D, E, F, G, H and J, exceeds (ii) an
amount equal to 0.1% of the aggregate Stated Principal Balance of the Mortgage
Pool that will be outstanding immediately following such Distribution Date. If
such excess does exist, then the respective Uncertificated Principal Balances of
such REMIC II Regular Interests (other than REMIC II Regular Interests A-1A,
A-1B, A-1C and A-2) shall be reduced sequentially, in reverse alphabetical order
of letter designation, in each case, until the first to occur of such excess
being reduced to zero or the Uncertificated Principal Balance of the particular
REMIC I Regular Interest being reduced to zero. If, after the foregoing
reductions, the amount described in clause (i) of the second preceding sentence
still exceeds the amount described in clause (ii) of the second preceding
sentence, then the respective Uncertificated Principal Balances of REMIC II
Regular Interests A-1A, A-1B, A-1C and A-2 shall be reduced, pro rata in
accordance with the relative sizes of the then outstanding Uncertificated
Principal Balances of such REMIC II Regular Interests, until the first to occur
of such excess being reduced to zero or each such Uncertificated Principal
Balance being reduced to zero. Such reductions in the Uncertificated Principal
Balances of such REMIC II Regular Interests shall be deemed to be allocations of
Realized Losses and Expense Losses.
(c) On each Distribution Date, following the distributions to be made to
the Certificateholders on such date pursuant to Section 6.4, the Trustee shall
determine the amount, if any, by which (i) the then aggregate Certificate
Principal Balance of the Principal Balance Certificates, exceeds (ii) the
aggregate Stated Principal Balance of the Mortgage Pool that will be outstanding
immediately following such Distribution Date. If such excess does exist, then
the Class Principal Balances of the Class J, Class H, Class G, Class F, Class E,
Class D, Class C and Class B Certificates shall be reduced sequentially, in that
order, in each case, until the first to occur of such excess being reduced to
zero or the related Class Principal Balance being reduced to zero. If, after the
foregoing reductions, the amount described in clause (i) of the second preceding
sentence still exceeds the amount described in clause (ii) of the second
preceding sentence, then the respective Class Principal Balances of the Class
A-1A, Class A-1B, Class A-1C and Class A-2 Certificates shall be reduced, pro
rata in accordance with the relative sizes of the then outstanding Class
Principal Balances of such Classes of Certificates, until the first to occur of
such excess being reduced to zero or each such Class Principal Balance being
reduced to zero. Such reductions in the Class Principal Balances of the
respective Classes of Principal Certificates shall be deemed to be allocations
of Realized Losses and Expense Losses.
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Section 6.6 Appraisal Reductions.
(a) Following the occurrence of an Appraisal Event in respect of any
Mortgage Loan, the Special Servicer shall promptly obtain (A) an Appraisal of
the related Mortgaged Property or REO Property, as applicable, if the Stated
Principal Balance of such Required Appraisal Loan exceeds $1,000,000 or (B) at
the option of the Special Servicer, if the Stated Principal Balance of such
Required Appraisal Loan is less than or equal to $1,000,000, either an internal
valuation prepared by the Special Servicer or an Appraisal; provided that if the
Special Servicer had completed or obtained an Appraisal or internal valuation
within the immediately preceding 12 months, the Special Servicer may rely on
such Appraisal or internal valuation and shall have no duty to prepare a new
Appraisal or internal valuation, unless such reliance would not be in accordance
with the Servicing Standard. Such Appraisal or internal valuation shall be
conducted in accordance with USPAP and shall be updated at least annually to the
extent such Mortgage Loan remains a Required Appraisal Loan. The cost of any
such Appraisal, if not performed by the Special Servicer, shall be an expense of
the Trust and may be paid from REO Income, treated as an Additional Trust
Expense or advanced by the Special Servicer (or, at the direction of the Special
Servicer, by the Master Servicer) in which event it shall be treated as a
Servicing Advance, subject to Section 4.4 hereof. The Master Servicer, based on
the Appraisal or internal valuation provided to it by the Special Servicer,
shall calculate any Appraisal Reduction. The Master Servicer shall calculate or
recalculate the Appraisal Reduction for any Mortgage Loan based on updated
Appraisals or internal valuations provided to it from time to time by the
Special Servicer.
Section 6.7 Compliance with Withholding Requirements. Notwithstanding any
other provision of this Agreement to the contrary, the Trustee shall comply with
all federal withholding requirements with respect to payments to
Certificateholders of interest, original issue discount, or other amounts that
the Trustee reasonably believes are applicable under the Code. The consent of
Certificateholders shall not be required for any such withholding. In the event
the Trustee withholds any amount from payments made to any Certificateholder
pursuant to federal withholding requirements, the Trustee shall indicate to such
Certificateholder the amount withheld.
ARTICLE VII
CONCERNING THE TRUSTEE AND THE FISCAL AGENT
Section 7.1 Duties of Trustee and the Fiscal Agent.
(a) The Fiscal Agent and, prior to the occurrence of an Event of Default
and after the curing or waiver of all Events of Default that may have occurred,
the Trustee undertake to perform only those duties as are specifically set forth
in this Agreement and no implied covenants or obligations shall be read into
this Agreement against the Trustee or the Fiscal Agent. Any permissive right of
the Trustee or Fiscal Agent, as applicable, provided for in this Agreement shall
not be construed as a duty of the Trustee or the Fiscal Agent. Subject to
Section 7.1(c)(vi), if an Event of Default occurs and is continuing, then, the
Trustee shall exercise such of the rights and powers vested in it by this
Agreement and use the same degree of care and skill in their
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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 all resolutions, certificates, statements,
opinions, reports, documents, orders or other instruments furnished to the
Trustee which are specifically required to be furnished pursuant to any
provision of this Agreement, shall examine them to determine whether they on
their face conform to the requirements of this Agreement (to the extent such
requirements are set forth herein); provided 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 furnished by the
Master Servicer or any other Person to the Trustee pursuant to this Agreement.
If any such instrument is found on its face not to conform to the requirements
of this Agreement, the Trustee shall take such action as it deems appropriate to
have the instrument corrected, and if the instrument is not corrected to the
Trustee's reasonable satisfaction, the Trustee will provide notice thereof to
the Certificateholders.
(c) No provision of this Agreement shall be construed to relieve the
Trustee or the Fiscal Agent or any of their respective directors, officers,
employees, agents or Controlling Persons from liability for their own negligent
action, their own negligent failure to act or their own willful misconduct;
provided that:
(i) Neither the Trustee nor the Fiscal Agent nor any of their
respective directors, officers, employees, agents or Controlling Persons
shall be personally liable with respect to any action taken, suffered or
omitted to be taken by it (A) in its reasonable business judgment in
accordance with this Agreement or (B) at the direction of Holders of
Certificates entitled to not less than a majority of the Voting Rights;
(ii) No provision of this Agreement shall require either the Trustee
or the Fiscal Agent to expend or risk its own funds or otherwise incur any
financial liability in the performance of any of its duties hereunder, or
in the exercise of any of its rights or powers, if it shall have reasonable
grounds for believing that repayment of such funds or adequate indemnity
against such risk or liability is not reasonably assured to it;
(iii) None of the Trustee, the Fiscal Agent or any of their respective
directors, officers, employees, agents or Controlling Persons shall be
responsible for any act or omission of the Master Servicer, the Special
Servicer, the Depositor or any Seller, including, without limitation,
actions taken pursuant to this Agreement, except to the extent the Trustee
or Fiscal Agent is acting as Master Servicer or Special Servicer;
(iv) The execution by the Trustee of any forms or plans of liquidation
in connection with any REMIC Pool shall not constitute a representation by
the Trustee or the Fiscal Agent as to the adequacy of such form or plan of
liquidation;
(v) The Trustee and the Fiscal Agent shall not be under any obligation
to appear in, prosecute or defend any legal action which is not incidental
to its duties as Trustee or Fiscal Agent, as applicable, in accordance with
this Agreement. In such event, all legal expense and costs of such action
shall be expenses and costs of the Trust and the
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Trustee and the Fiscal Agent shall be entitled to be reimbursed therefor
from the Collection Account pursuant to Section 5.2(b); and
(vi) Neither the Trustee nor the Fiscal Agent shall be charged with
knowledge of any failure by the Master Servicer or the Special Servicer to
comply with their respective obligations under this Agreement or any act,
failure, or breach of any Person upon the occurrence of which the Trustee
may be required to act, except to the extent the Trustee or Fiscal Agent is
acting as Master Servicer or Special Servicer, or unless a Responsible
Officer of the Trustee obtains actual knowledge of such failure.
Section 7.2 Certain Matters Affecting the Trustee and the Fiscal Agent.
(a) Except as otherwise provided in Section 7.1:
(i) The Trustee or the Fiscal Agent may request, and may rely and
shall be protected in acting or refraining from acting upon any resolution,
Officer's Certificate, certificate of auditors or any other certificate,
statement, instrument, opinion, report, notice, request, consent, order,
approval, bond or other paper or document believed by it to be genuine and
to have been signed or presented by the proper party or parties;
(ii) The Trustee or the Fiscal Agent may consult with counsel and the
advice of such 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 advice or Opinion of Counsel;
(iii) Neither the Trustee nor the Fiscal Agent nor any of their
respective directors, officers, employees, agents or Controlling Persons
shall be personally liable for any action taken, suffered or omitted by the
Trustee or the Fiscal Agent in its reasonable business judgment and
reasonably believed by it to be authorized or within the discretion or
rights or powers conferred upon it by this Agreement;
(iv) The Trustee and the Fiscal Agent (in their respective capacities
as such) shall be under no obligation to exercise any of the powers vested
in it by this Agreement or to institute conduct or defend any litigation
hereunder or relating hereto or 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 (provided the same appears regular on its face), unless
requested in writing to do so by Holders of Certificates entitled to at
least 25% of the Voting Rights; provided that, if the payment within a
reasonable time to the Trustee or the Fiscal Agent of the costs, expenses
or liabilities likely to be incurred by it in connection with the foregoing
is, in the opinion of the Trustee or the Fiscal Agent not reasonably
assured to the Trustee or the Fiscal Agent by the security afforded to it
by the terms of this Agreement, the Trustee or the Fiscal Agent may require
reasonable indemnity against such expense or liability or payment of such
estimated expenses as a condition to proceeding. The Trustee's and the
Fiscal Agent's reasonable expenses shall be paid by the
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Certificateholders requesting such examination;
(v) The Trustee and the Fiscal Agent may execute any of the trusts or
powers hereunder or perform any duties hereunder either directly or by or
through agents or attorneys, which agents or attorneys shall have any or
all of the rights, powers, duties and obligations of the Trustee or the
Fiscal Agent conferred on them by such appointment; provided that the
Trustee shall continue to be responsible for its duties and obligations
hereunder and shall not be liable for the actions or omissions of the
Master Servicer, the Special Servicer or the Depositor;
(vi) The Trustee and the Fiscal Agent shall in no event be required to
obtain a deficiency judgment against a Mortgagor;
(vii) Neither the Trustee nor the Fiscal Agent shall be required to
expend its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder (unless otherwise expressly
required herein to do so) if it shall have reasonable grounds for believing
that repayment of such funds or adequate indemnity against such liability
is not assured to it;
(viii) Neither the Trustee nor the Fiscal Agent shall be liable for
any loss on any investment of funds pursuant to this Agreement; provided,
however, that this provision shall not operate to forgive the Trustee or
Fiscal Agent, in their respective individual capacities, for a liability
that either of them may have for any investment loss incurred on such
investment; and
(ix) unless otherwise specifically required by law, the Trustee and
the Fiscal Agent shall not be required to post any surety or bond of any
kind in connection with the execution or performance of its duties
hereunder.
(b) Following the Closing Date, the Trustee shall not accept any
contribution of assets to the Trust not specifically contemplated by this
Agreement unless the Trustee shall have received a Nondisqualification Opinion
at the expense of the Person desiring to contribute such assets with respect to
such contribution.
(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
the 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.
(d) The Trustee shall timely pay, from its own funds, the amount of any and
all federal, state and local taxes imposed on the Trust or its assets or
transactions including, without limitation, (A) "prohibited transaction" penalty
taxes as defined in Section 860F of the Code, if, when and as the same shall be
due and payable, (B) any tax on contributions to a REMIC after the Closing Date
imposed by Section 860G(d) of the Code and (C) any tax on "net income from
foreclosure property" as defined in Section 860G(c) of the Code, but only if
such
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taxes arise out of a breach by the Trustee of its obligations hereunder, which
breach constitutes negligence or willful misconduct of the Trustee.
Section 7.3 Trustee and Fiscal Agent Not Liable for Certificates or
Interests or Mortgage Loans. The Trustee and the Fiscal Agent make no
representations as to the validity or sufficiency of this Agreement (other than
the certificate of authentication on the Certificates) or of any Mortgage Loan,
Assignment of Mortgage or related document. The Trustee and the Fiscal Agent
shall not be accountable for the use or application by the Depositor or the
Master Servicer or the Special Servicer of any of the Certificates or any of the
proceeds of such Certificates, or for the use or application by the Depositor or
the Master Servicer or the Special Servicer of funds paid in consideration of
the assignment of the Mortgage Loans to the Trust or deposited into the
Distribution Account or any other fund or account maintained with respect to the
Certificates or any account maintained pursuant to this Agreement or for
investment of any such amounts. Neither the Trustee nor the Fiscal Agent shall
at any time have any responsibility or liability for or with respect to the
legality, validity or enforceability of the Mortgages or the Mortgage Loans, or
the perfection and priority of the Mortgages or, except as provided in Section
2.1(c), the maintenance of any such perfection and priority, or for or with
respect to the efficacy of the Trust or its ability to generate the payments to
be distributed to Certificateholders under this Agreement, including, without
limitation, the existence, condition and ownership of any Mortgaged Property;
the existence and enforceability of any hazard insurance thereon; the validity
of the assignment of the Mortgage Loans to the Trust or of any intervening
assignment; the completeness of the Mortgage Loans; the performance or
enforcement of the Mortgage Loans (other than if the Trustee shall assume the
duties of the Master Servicer or the Special Servicer); any investment of monies
by the Master Servicer or the Special Servicer or any loss resulting therefrom;
the failure of the Master Servicer or any Sub-Servicer or the Special Servicer
to act or perform any duties required of it on behalf of the Trustee hereunder;
or any action by the Trustee taken at the instruction of the Master Servicer or
the Special Servicer.
Section 7.4 Trustee and the Fiscal Agent May Own Certificates. The Trustee
and the Fiscal Agent and any agent of the Trustee and the Fiscal Agent in its
individual or any other capacity may become the owner or pledgee of Certificates
with the same rights it would have if it were not the Trustee and the Fiscal
Agent or such agent.
Section 7.5 Eligibility Requirements for Trustee and Fiscal Agent. The
Trustee hereunder shall at all times be (i) an institution insured by the FDIC,
(ii) a corporation, authorized to exercise corporate trust powers, having a
combined capital and surplus of not less than $50,000,000 and subject to
supervision or examination by federal or state authority, and (iii) an
institution whose long-term senior unsecured debt is, for so long as a Fiscal
Agent is acting hereunder, rated not less than "BBB" by DCR (if rated by DCR or,
if not rated by DCR, then an equivalent rating from another nationally
recognized statistical rating organization other than Moody's) and, in any
event, "Baa2" by Moody's; provided that either the Trustee or the Fiscal Agent
shall at all times be an institution whose long-term senior unsecured debt is
rated not less than "AA" by DCR (if rated by DCR or, if not rated by DCR, then
an equivalent rating from another nationally recognized statistical rating
organization other than Moody's) and, in any event, "Aa2" by Moody's or
otherwise acceptable to the Rating Agencies. If such corporation, national bank
or national banking association publishes reports of condition at least
annually, pursuant to
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law or to the requirements of the aforesaid supervising or examining authority,
then, for the purposes of this Section, the combined capital and surplus of such
corporation, national bank or national banking association shall be deemed to be
its combined capital and surplus as set forth in its most recent report of
condition so published. In case at any time the Trustee or Fiscal Agent shall
cease to be eligible in accordance with provisions of this Section, the Trustee
or Fiscal Agent shall resign immediately in the manner and with the effect
specified in Section 7.6.
Section 7.6 Resignation and Removal of Trustee or Fiscal Agent.
(a) The Trustee or the Fiscal Agent 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 the Rating Agencies; provided that such
resignation shall not be effective until its successor shall have accepted the
appointment and Rating Agency Confirmation shall have been obtained with respect
to such appointment. Upon receiving such notice of resignation, the Depositor
will promptly appoint a successor trustee or fiscal agent, as the case may be,
except in the case of the initial Trustee or Fiscal Agent, in which case both
shall be so replaced concurrently, by written instrument, one copy of which
instrument shall be delivered to the resigning Trustee or the Fiscal Agent, one
copy to the successor trustee and one copy to each of the Master Servicer and
the Rating Agencies. If no successor trustee or fiscal agent shall have been so
appointed and shall have accepted appointment within 30 days after the giving of
such notice of resignation, the resigning Trustee or the Fiscal Agent may
petition any court of competent jurisdiction for the appointment of a successor
trustee or fiscal agent.
(b) If at any time (i) the Trustee shall cease to be eligible in accordance
with the provisions of Section 7.5 and shall fail to resign after written
request therefor by the Depositor, (ii) the Trustee shall become incapable of
acting, or shall be adjudged a 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, (iii) a tax is imposed or
threatened with respect to the Trust or any REMIC Pool by any state in which the
Trustee or the Trust held by the Trustee is located; provided, however, that, if
the Trustee agrees to indemnify the Trust for such taxes, it shall not be
removed pursuant to this clause (iii), or (iv) the continuation of the Trustee
as such would result in a downgrade, qualification or withdrawal of the rating
by the Rating Agencies of any Class of Certificates with a rating as evidenced
in writing by the Rating Agencies, then the Depositor may remove such Trustee
and appoint a successor trustee by written instrument, one copy of which
instrument shall be delivered to the Trustee so removed, one copy to the
successor trustee and one copy to each of the Master Servicer and the Rating
Agencies. In the case of removal under clauses (i), (ii), (iii) and (iv) above,
the Trustee shall bear all such costs of transfer. Such succession shall take
effect after a successor trustee has been appointed. In the case of the removal
of the initial Trustee, the Depositor shall also remove the Fiscal Agent. In
this case, the procedures and liability for costs of such removal shall be the
same as they are stated in subsection (c) with respect to the Fiscal Agent.
(c) If at any time (i) the Fiscal Agent shall cease to be eligible in
accordance with the provisions of Section 7.5 and shall fail to resign after
written request therefor by the Depositor, or (ii) a Termination Event has
occurred, then the Depositor shall send a written notice
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of termination to the Fiscal Agent (which notice shall specify the reason for
such termination) and remove such Fiscal Agent and appoint a successor Fiscal
Agent by written instrument, one copy of which instrument shall be delivered to
the Fiscal Agent so removed, one copy to the successor Fiscal Agent, and one
copy to each of the Trustee, the Master Servicer and the Rating Agencies. In all
such cases, the Fiscal Agent shall bear all costs of transfer to a successor
Fiscal Agent, such succession only to take effect after a successor Fiscal Agent
has been appointed. In the case of the initial Fiscal Agent, the Depositor may,
but is not required to, also remove the Trustee. In this case, the procedures
and liability for costs of such removal shall be the same as they are stated in
subsection (b) with respect to the Trustee.
(d) The Holders of Certificates entitled to at least 51% of the Voting
Rights may without cause upon 30 days' written notice to the Trustee or the
Fiscal Agent and to the Depositor remove the Trustee or the Fiscal Agent by such
written instrument, signed by such Holders or their attorney-in-fact duly
authorized, one copy of which instrument shall be delivered to the Depositor and
one copy to the Trustee or the Fiscal Agent so removed; the Depositor shall
thereupon use its best efforts to appoint a successor Trustee or the Fiscal
Agent in accordance with this Section. The Certificateholders effecting such
transfer shall be responsible for the reasonable out-of-pocket costs of
transferring the Mortgage Files to the successor trustee.
(e) Any resignation or removal of the Trustee or the Fiscal Agent and
appointment of a successor trustee or fiscal agent pursuant to any of the
provisions of this Section shall become effective upon acceptance of appointment
by the successor trustee and fiscal agent as provided in Section 7.7. Upon any
succession of the Trustee or the Fiscal Agent under this Agreement, the
predecessor Trustee or the Fiscal Agent shall be entitled to the payment of
compensation and reimbursement agreed to under this Agreement for services
rendered and expenses incurred (including without limitation unreimbursed
Advances made thereby, with any related unpaid Advance Interest accrued on such
Advances) at such times and from such sources as if the predecessor Trustee or
Fiscal Agent had not resigned or been removed. The Trustee and the Fiscal Agent
shall not be liable for any action or omission of any successor Trustee or
Fiscal Agent.
Section 7.7 Successor Trustee or Fiscal Agent.
(a) Any successor Trustee or Fiscal Agent appointed as provided in Section
7.6 shall execute, acknowledge and deliver to the Depositor and to its
predecessor Trustee an instrument accepting such appointment hereunder, and
thereupon the resignation or removal of the predecessor Trustee or Fiscal Agent
shall become effective and such successor Trustee or 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 like effect as
if originally named as Trustee or Fiscal Agent herein. The predecessor Trustee
shall deliver to the successor Trustee all Mortgage Files and documents and
statements related to the Mortgage Files held by it hereunder, and shall duly
assign, transfer, deliver and pay over to the successor Trustee the entire
Trust, together with all instruments of transfer and assignment or other
documents properly executed necessary to effect such transfer and such records
or copies thereof maintained by the predecessor Trustee or Fiscal Agent in the
administration hereof as may be reasonably requested by the successor Trustee or
Fiscal Agent and shall thereupon be discharged from all duties and
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responsibilities under this Agreement. In addition, the Depositor and the
predecessor Trustee or the Fiscal Agent shall execute and deliver such other
instruments and do such other things as may reasonably be required to more fully
and certainly vest and confirm in the successor Trustee or the successor Fiscal
Agent all such rights, powers, duties and obligations. Anything herein to the
contrary notwithstanding, in no event shall the combined fees payable to a
successor Trustee and successor Fiscal Agent exceed the Trustee Fee.
(b) No successor Trustee shall accept appointment as provided in this
Section unless at the time of such appointment such successor Trustee shall be
eligible under the provisions of Section 7.5.
(c) Upon acceptance of appointment by a successor Trustee or the Fiscal
Agent as provided in this Section, the successor Trustee or the Fiscal Agent
shall mail notice of the succession of such Trustee or Fiscal Agent hereunder to
all Holders of Certificates at their addresses as shown in the Certificate
Register and to the Rating Agencies (evidence of such mailing to be provided to
the Depositor and the Master Servicer). The expenses of such mailing shall be
borne by the successor Trustee or Fiscal Agent.
Section 7.8 Merger or Consolidation of Trustee. Any Person into which the
Trustee may be merged or converted or with which it may be consolidated, or any
Person resulting from any merger, conversion or consolidation to which such
Trustee shall be a party, or any Persons succeeding to the business of such
Trustee or Fiscal Agent, shall be the successor of such Trustee or Fiscal Agent
hereunder, provided that such Person shall be eligible under the provisions of
Section 7.5, 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 7.9 Appointment of Co-Trustee, Separate Trustee or Custodian.
(a) Notwithstanding any other provisions hereof, at any time, the Trustee,
the Depositor or, in the case of the Trust, the Certificateholders entitled to
more than 50% of the Voting Rights shall each have the power from time to time
to appoint one or more Persons to act either as co-trustees jointly with the
Trustee or as separate trustees, or as custodians, for the purpose of holding
title to, foreclosing or otherwise taking action with respect to any Mortgage
Loan outside the state where the Trustee has its principal place of business
where such separate trustee or co-trustee is necessary or advisable (or the
Trustee is advised by the Master Servicer or Special Servicer that such separate
trustee or co-trustee is necessary or advisable) under the laws of any state in
which a property securing a Mortgage Loan is located or for the purpose of
otherwise conforming to any legal requirement, restriction or condition in any
state in which a property securing a Mortgage Loan is located or in any state in
which any portion of the Trust is located. The separate trustees, co-trustees,
or custodians so appointed shall be trustees or custodians for the benefit of
all the Certificateholders, shall have such powers, rights and remedies as shall
be specified in the instrument of appointment and shall be deemed to have
accepted the provision of this Agreement; provided that no such appointment
shall, or shall be deemed to, constitute the appointee an agent of the Trustee;
provided, further that the Trustee shall not be liable for the actions of any
co-trustee or separate trustee not appointed by it.
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(b) Every separate trustee, co-trustee, and custodian shall, to the extent
permitted by law, be appointed and act subject to the following provisions and
conditions:
(i) all powers, duties, obligations and rights conferred upon the
Trustee in respect of the receipt, custody and payment of moneys shall be
exercised solely by the Trustee;
(ii) all other 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, co-trustee, or
custodian jointly, except to the extent that under any law of any
jurisdiction in which any particular act or acts are to be performed
(whether as Trustee hereunder or 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 or any portion thereof in any
such jurisdiction, shall be exercised and performed by such separate
trustee, co-trustee, or custodian;
(iii) no trustee or custodian hereunder shall be personally liable by
reason of any act or omission of any other trustee or custodian hereunder;
and
(iv) the Trustee or, in the case of the Trust, the Certificateholders
entitled to more than 50% of the Voting Rights outstanding may at any time
accept the resignation of or remove any separate trustee, co-trustee or
custodian, so appointed by it or them, if such resignation or removal does
not violate the other terms of this Agreement.
(c) Any notice, request or other writing given to the Trustee shall be
deemed to have been given to each of the then separate trustees and co-trustees,
as effectively as if given to each of them. Every instrument appointing any
separate trustee, co-trustee or custodian shall refer to this Agreement and the
conditions of this Article VII. Each separate trustee and co-trustee, upon its
acceptance of the trusts conferred, shall be vested with the estates or property
specified in its instrument of appointment, either jointly with the Trustee or
separately, as may be provided therein, subject to all the provisions of this
Agreement, specifically including every provision of this Agreement relating to
the conduct of, affecting the liability of, or affording protection to, the
Trustee. Every such instrument shall be filed with the Trustee.
(d) Any separate trustee, co-trustee or custodian 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, co-trustee or custodian shall die, become incapable of acting, resign
or be removed, all of its estates, properties, rights, remedies and trusts shall
vest in and be exercised by the Trustee, to the extent permitted by law, without
the appointment of a new or successor trustee.
(e) No separate trustee, co-trustee or custodian hereunder shall be
required to meet the terms of eligibility as a successor trustee under section
7.5 hereof and no notice to Certificateholders of the appointment of any
separate trustee, co-trustee or custodian hereunder
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shall be required.
(f) The Trustee agrees to instruct the co-trustees, if any, to the extent
necessary to fulfill the Trustee's obligations hereunder.
(g) The Trustee shall pay the reasonable compensation of the co-trustees,
separate trustees or custodians appointed pursuant to this Section 7.9 to the
extent, and in accordance with the standards, specified in Section 7.12 hereof.
(h) Subject to the consent of the Depositor, which consent shall not be
unreasonably withheld, the Trustee may appoint at any time a custodian to hold
some or all of the Mortgage Files; provided that Rating Agency Confirmation is
obtained with respect to such appointee. Upon the appointment of a Custodian,
the Trustee and the Custodian shall enter into a custodial agreement.
Section 7.10 Authenticating Agents.
(a) The Trustee may appoint one or more Authenticating Agents which shall
be authorized to act on behalf of the Trustee in executing and authenticating
Certificates. Wherever reference is made in this Agreement to the execution and
authentication of Certificates by the Trustee or the Trustee's certificate of
authentication, such reference shall be deemed to include execution and
authentication on behalf of the Trustee by an Authenticating Agent and a
certificate of authentication executed on behalf of the Trustee by an
Authenticating Agent. Each 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 of any state and having a principal office
and place of business in the Borough of Manhattan, the City and State of New
York or in the State of Illinois, having a combined capital and surplus of at
least $50,000,000, authorized under such laws to do a trust business and subject
to supervision or examination by federal or state authorities. The Trustee
initially shall be Authenticating Agent hereunder.
(b) Any Person into which any Authenticating Agent may be merged or
converted or with which it may be consolidated, or any Person resulting from any
merger, conversion or consolidation to which any Authenticating Agent shall be a
party, or any Person succeeding to the corporate agency business of any
Authenticating Agent, shall continue to 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.
(c) Any 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 any Authenticating Agent by
giving written notice of termination to such Authenticating Agent and the
Depositor. Upon receiving a notice of resignation or upon such a termination, or
in case at any time any Authenticating Agent shall cease to be eligible in
accordance with the provisions of Section 7.10(a), the Trustee may appoint a
successor Authenticating Agent, shall give written notice of such appointment to
the Depositor and shall mail notice of such appointment to all Holders of
Certificates. Any successor Authenticating Agent upon acceptance of its
appointment hereunder shall become vested with all the rights,
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powers, duties and responsibilities of its predecessor hereunder, with like
effect as if originally named as Authenticating Agent. No such Authenticating
Agent shall be appointed unless eligible under the provisions of Section
7.10(a). No Authenticating Agent shall have responsibility or liability for any
action taken by it as such at the direction of the Trustee.
Section 7.11 Indemnification of Trustee.
The Trustee and each of its directors, officers, employees, agents and
Controlling Persons shall be entitled to indemnification from the Trust for any
and all claims, losses, penalties, fines, forfeitures, legal fees and related
costs, judgements and any other costs, liabilities, fees and expenses incurred
in connection with any legal action not expressly required hereby to be borne by
the Trustee and incurred without negligence or willful misconduct on their part,
arising out of, or in connection with this Agreement, the Certificates and the
acceptance or administration of the trusts created hereunder (including, without
limitation, any unanticipated loss, liability or expense incurred in connection
with any action or inaction of the Master Servicer, the Special Servicer or the
Depositor hereunder, except to the extent that the Trustee is acting as Master
Servicer or Special Servicer), including the reasonable costs and expenses of
defending themselves against any claim in connection with the exercise or
performance of any of their powers or duties hereunder and the Trustee and each
of its directors, officers, employees, agents and Controlling Persons shall be
entitled to indemnification from the Trust for any unanticipated loss, liability
or expense incurred in connection with the provision by the Trustee of any
report required to be provided by the Trustee pursuant to this Agreement;
provided that:
(i) with respect to any such claim, the Trustee shall have given the
Depositor and the Holders of the Certificates written notice thereof
promptly after the Trustee shall have knowledge thereof; provided, however
that failure to give such notice to the Depositor and the Holders of
Certificates shall not affect the Trustee's rights to indemnification
herein unless the Depositor's defense of such claim is materially
prejudiced thereby;
(ii) while maintaining control over its own defense, the Trustee shall
cooperate and consult fully with the Depositor in preparing such defense;
and
(iii) notwithstanding anything to the contrary in this Section 7.11,
the Trust shall not be liable for settlement of any such claim by the
Trustee entered into without the prior consent of the Depositor, which
consent shall not be unreasonably withheld.
The provisions of this Section 7.11 shall survive any termination of this
Agreement and the resignation or removal of the Trustee.
Section 7.12 Fees and Expenses of Trustee and the Fiscal Agent. Monthly,
the Trustee shall be entitled to receive, and the Master Servicer shall be
obligated to pay out of its Master Servicing Fees, the Trustee Fee (which shall
not be limited by any provision of law with respect to the compensation of a
trustee of an express trust), for all services rendered by it in the execution
of the trusts hereby created and in the exercise and performance of any of the
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powers and duties hereunder of the Trustee. On or before the Master Servicer
Remittance Date in each month (commencing in April 1997), in satisfaction of
such obligation of the Master Servicer, the Master Servicer shall, pursuant to
Section 5.2(a), remit to the Trustee for deposit in the Distribution Account
that portion of its Master Servicing Fees then on deposit in the Collection
Account that are allocable to cover the Trustee Fees, and the Trustee shall be
entitled to withdraw such portion of the Master Servicing Fees from the
Distribution Account to pay itself its unpaid Trustee Fees. The Trustee and the
Fiscal Agent shall also be entitled to recover from the Trust all reasonable
unanticipated expenses and disbursements incurred or made by the Trustee and the
Fiscal Agent in accordance with any of the provisions of this Agreement
(including the reasonable compensation and the reasonable expenses and
disbursements of its outside counsel and other Persons not regularly in its
employ), not including expenses incurred in the ordinary course of performing
its duties as Trustee and Fiscal Agent hereunder, and except any such expense,
disbursement or advance as may arise from its negligence or bad faith or which
is the responsibility of the Holders of the Certificates hereunder. The
provisions of this Section 7.12 shall survive any termination of this Agreement
and the resignation or removal of the Trustee and Fiscal Agent.
Section 7.13 Collection of Moneys. Except as otherwise expressly provided
in this Agreement, the Trustee may demand payment or delivery of, and shall
receive and collect, all money and other property payable to or receivable by
the Trustee pursuant to this Agreement. The Trustee shall hold all such money
and property received by it as part of the Trust and shall distribute it as
provided in this Agreement. If the Trustee shall not have timely received
amounts to be remitted with respect to the Mortgage Loans from the Master
Servicer, the Trustee shall request the Master Servicer to make such
distribution as promptly as practicable or legally permitted. If the Trustee
shall subsequently receive any such amount, it may withdraw such request.
Section 7.14 Notification to Holders. Upon termination of the Master
Servicer or appointment of a successor to the Master Servicer, the Trustee shall
promptly mail notice thereof by first class mail to the Rating Agencies and the
Certificateholders at their respective addresses appearing on the Certificate
Register.
Section 7.15 Representations and Warranties of the Trustee and the Fiscal
Agent.
(a) The Trustee hereby represents and warrants 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 governing its creation
and existence and has full corporate power and authority to own its
property, to carry on its business as presently conducted, and to enter
into and perform its obligations under this Agreement;
(ii) The execution and delivery by the Trustee of this Agreement have
been duly authorized by all necessary corporate action on the part of the
Trustee; neither the execution and delivery of this Agreement, nor the
consummation of the transactions contemplated in this Agreement, nor
compliance with the provisions of this Agreement,
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will conflict with or result in a breach of, or constitute a default under,
(A) any of the provisions of any law, governmental rule, regulation,
judgment, decrees or order binding on the Trustee or its properties that
would materially and adversely affect the Trustee's ability to perform its
obligations under this Agreement, (B) the organizational documents of the
Trustee, or (C) the terms of any material agreement or instrument to which
the Trustee is a party or by which it is bound; the Trustee 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 other governmental
agency, which default would materially and adversely affect its performance
under this Agreement;
(iii) The execution, delivery and performance by the Trustee of this
Agreement and the consummation of the transactions contemplated by this
Agreement do not require the consent, approval, authorization or order of,
the giving of notice to or the registration with any state, federal or
other governmental authority or agency, except such as has been or will be
obtained, given, effected or taken in order for the Trustee to perform its
obligations under this Agreement;
(iv) This Agreement has been duly executed and delivered by the
Trustee and, assuming due authorization, execution and delivery by the
other parties hereto, constitutes a valid and binding obligation of the
Trustee, enforceable against the Trustee in accordance with its terms,
subject, as to enforcement of remedies, (A) to applicable bankruptcy,
reorganization, insolvency, moratorium and other similar laws affecting
creditors' rights generally as from time to time in effect, (B) to general
principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law) and (C) public policy
considerations underlying the securities laws to the extent that such
considerations limit the enforceability of the provisions of this Agreement
that purport to provide for indemnification for securities law violations;
and
(v) No litigation is pending or, to the best of the Trustee's
knowledge, threatened, against the Trustee that, either in one instance or
in the aggregate, would draw into question the validity of this Agreement,
or the outcome of which could reasonably be expected to materially and
adversely affect the execution, delivery and performance by, or the
enforceability against, the Trustee of this Agreement or the ability of the
Trustee to perform under the terms of this Agreement.
(b) The Fiscal Agent hereby represents and warrants 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
and existence and has full corporate power and authority to own its
property, to carry on its business as presently conducted, and to enter
into and perform its obligations under this Agreement;
(ii) The execution and delivery by the Fiscal Agent of this Agreement
have been duly authorized by all necessary corporate action on the part of
the Fiscal Agent; neither the execution and delivery of this Agreement, nor
the consummation of the transactions contemplated in this Agreement, nor
compliance with the provisions of this
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Agreement, will conflict with or result in a breach of, or constitute a
default under, (i) any of the provisions of any law, governmental rule,
regulation, judgment, decrees or order binding on the Fiscal Agent or its
properties that would materially and adversely affect the Fiscal Agent's
ability to perform its obligations under this Agreement, (ii) the
organizational documents of the Fiscal Agent, or (iii) the terms of any
material agreement or instrument to which the Fiscal Agent is a party or by
which it is bound; the Fiscal Agent 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 other governmental agency, which default would
materially and adversely affect its performance under this Agreement;
(iii) The execution, delivery and performance by the Fiscal Agent of
this Agreement and the consummation of the transactions contemplated by
this Agreement do not require the consent, approval, authorization or order
of, the giving of notice to, or the registration with, any state, federal
or other governmental authority or agency, except such as has been
obtained, given, effected or taken prior to the date hereof;
(iv) This Agreement has been duly executed and delivered by the Fiscal
Agent and, assuming due authorization, execution and delivery by the other
parties hereto, constitutes a valid and binding obligation of the Fiscal
Agent, enforceable against the Fiscal Agent in accordance with its terms,
subject, as to enforcement of remedies, (A) to applicable bankruptcy,
reorganization, insolvency, moratorium and other similar laws affecting
creditors' rights generally as from time to time in effect, (B) to general
principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law) and (C) public policy
considerations underlying the securities laws to the extent that such
considerations limit the enforceability of the provisions of this Agreement
that purport to provide for indemnification for securities law violations;
and
(v) No litigation is pending or, to the best of the Fiscal Agent's
knowledge, threatened, against the Fiscal Agent, the outcome of which could
reasonably be expected to materially and adversely affect the execution,
delivery and performance by, or the enforceability against, the Fiscal
Agent of this Agreement or the ability of the Fiscal Agent to perform under
the terms of this Agreement.
ARTICLE VIII
ADMINISTRATION AND SERVICING
OF MORTGAGE LOANS
Section 8.1 Servicing Standard; General Powers and Duties.
(a) Each of the Master Servicer and the Special Servicer shall service and
administer the Mortgage Loans and other assets of the Trust that it is obligated
to service and administer pursuant to this Agreement on behalf of the Trustee
and in the best interests of and for the benefit of the Certificateholders (as
determined by the Master Servicer or the Special Servicer, as the case may be,
in its good faith and reasonable judgment), in accordance with applicable law,
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the terms of this Agreement and the terms of the respective Mortgage Loans and,
to the extent consistent with the foregoing, further as follows: (i) 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;
(ii) 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 collections that will be distributable to
Certificateholders to be performed at the related Net Mortgage Rate); and (iii)
without regard to (A) any relationship that the Master Servicer or the Special
Servicer, as the case may be, or any Affiliate thereof may have with the related
Mortgagor, (B) the ownership of any Certificate by the Master Servicer or the
Special Servicer, as the case may be, or by any Affiliate thereof, (C) the
Master Servicer's obligation to make Advances, (D) the Special Servicer's
obligation to make (or to direct the Master Servicer to make) Servicing Advances
and (E) 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 payable to it,
hereunder or with respect to any particular transaction (the conditions set
forth in the immediately foregoing clauses (i), (ii) and (iii), the "Servicing
Standard"). Without limiting the generality of the foregoing, each of the Master
Servicer and the Special Servicer, in its own name, in connection with its
servicing and administrative duties hereunder is hereby authorized and empowered
by the Trustee to exercise efforts consistent with the foregoing standard and to
execute and deliver, on behalf of the Certificateholders and the Trustee or any
of them, any and all financing statements, continuation statements and other
documents or instruments necessary to maintain the lien created by any Mortgage
or other security document in the related Mortgage File on the related Mortgaged
Property and related collateral; subject to Section 8.18, any and all
modifications, waivers, amendments or consents to or with respect to any
documents contained in the related Mortgage File; and any and all instruments of
satisfaction or cancellation, or of full release or discharge, and all other
comparable instruments, with respect to the Mortgage Loans and the Mortgaged
Properties. Each of the Master Servicer and the Special Servicer is also
authorized to approve a request by a Mortgagor under a Mortgage Loan that it is
obligated to service and administer pursuant to this Agreement, for an easement,
consent to alteration or demolition, and for other similar matters, provided
that the Master Servicer or the Special Servicer, as the case may be,
determines, exercising its good faith business judgment in the same manner as it
would if it were the owner of the related Mortgage Loan, that such approval will
not affect the security for, or the timely and full collectability of, the
related Mortgage Loan. Subject to Section 8.8, the Trustee shall furnish, or
cause to be furnished, to the Master Servicer and the Special Servicer any
powers of attorney and other documents necessary or appropriate to enable the
Master Servicer or the Special Servicer, as the case may be, to carry out its
servicing and administrative duties hereunder; provided, however, that the
Trustee shall not be held liable for any negligence with respect to, or misuse
of, any such power of attorney by the Master Servicer or the Special Servicer,
as the case may be.
(b) Except as otherwise expressly set forth herein with respect to specific
duties,
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the Master Servicer shall be responsible for the servicing and administration of
all the Mortgage Loans other than Specially Serviced Mortgage Loans and REO
Mortgage Loans, and the Special Servicer shall be responsible for the servicing
and administration of Specially Serviced Mortgage Loans and REO Properties.
Subject to Section 8.1(a), the Master Servicer and the Special Servicer shall
each have full power and authority, acting alone or, subject to Section 8.4,
through Sub-Servicers, to do or cause to be done any and all things in
connection with such servicing and administration which it may deem necessary or
desirable.
(c) Upon determining that a Servicing Transfer Event has occurred with
respect to any Mortgage Loan and if the Master Servicer is not also the Special
Servicer, the Master Servicer shall promptly give notice thereof, and deliver
the related Servicing File, to the Special Servicer and shall use reasonable
efforts to provide the Special Servicer with all information, documents (or
copies thereof) and records (including records stored electronically on computer
tapes, magnetic discs and the like) relating to the Mortgage Loan and reasonably
requested by the Special Servicer to enable it to assume its functions hereunder
with respect thereto without acting through a Sub-Servicer. The Master Servicer
shall use reasonable efforts to comply with the preceding sentence within five
Business Days of the occurrence of each related Servicing Transfer Event. The
Special Servicer may, as to any delinquent Mortgage Loan, prior to the
occurrence of a Servicing Transfer Event with respect thereto, upon reasonable
request, obtain the foregoing documents and information.
Upon determining that a Specially Serviced Mortgage Loan has become a
Corrected Mortgage Loan and if the Master Servicer is not also the Special
Servicer, the Special Servicer shall promptly give notice thereof, and return
the related Servicing File, to the Master Servicer and upon giving such notice,
and returning such Servicing File, to the Master Servicer, the Special
Servicer's obligation to service such Mortgage Loan, and the Special Servicer's
right to receive the Special Servicing Fee with respect to such Mortgage Loan,
shall terminate, and the obligations of the Master Servicer to service and
administer such Mortgage Loan in accordance with this Agreement shall resume.
Notwithstanding other provisions in this Agreement to the contrary, the
Master Servicer shall remain responsible for the billing and collection,
accounting, data collection, reporting and other basic Master Servicer
administrative functions with respect to Specially Serviced Mortgage Loans,
provided that the Special Servicer shall establish procedures for the Master
Servicer as to the application of receipts and tendered payments and shall have
the exclusive responsibility for and authority over all contacts with and
notices to Mortgagors and similar matters relating to each Specially Serviced
Mortgage Loan and the related Mortgaged Property.
(d) The Master Servicer and Special Servicer will each be required to
service and administer each of the respective groups of Cross-Collateralized
Mortgage Loans as a single Mortgage Loan as and when it deems necessary and
appropriate, consistent with the Servicing Standard. If any Cross-Collateralized
Mortgage Loan becomes a Specially Serviced Mortgage Loan, then each other
Mortgage Loan with which it is cross-collateralized shall also become a
Specially Serviced Mortgage Loan. Similarly, no Cross-Collateralized Mortgage
Loan may subsequently become a Corrected Mortgage Loan, unless and until all
Servicing Transfer Events
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in respect of each other Mortgage Loan with which it is cross-collateralized,
are remediated or otherwise addressed as contemplated above.
(e) Notwithstanding anything in this Agreement to the contrary, in the
event that the Master Servicer and the Special Servicer are the same Person, all
notices, certificates, information and consents required to be given by the
Master Servicer to the Special Servicer or vice versa shall be deemed to be
given without the necessity of any action on such Person's part.
(f) The relationship of each of the Master Servicer and the Special
Servicer to the Trustee and, unless the same Person acts in both capacities, to
each other under this Agreement is intended by the parties to be that of an
independent contractor and not of a joint venturer, partner or agent.
Section 8.2 Collection of Mortgage Loan Payments.
(a) The Master Servicer (or the Special Servicer with respect to the
Specially Serviced Mortgage Loans) shall make reasonable efforts to collect all
payments called for under the terms and provisions of the Mortgage Loans, and
shall, to the extent such procedures shall be consistent with this Agreement,
follow such collection procedures as it would follow were it the owner of such
Mortgage Loans; provided, however, that nothing herein contained shall be
construed as an express or implied guarantee by the Master Servicer or the
Special Servicer of the collectability of the Mortgage Loans. Consistent with
the foregoing, the Master Servicer may in its discretion waive any Penalty
Charge in connection with any delinquent payment on a Mortgage Loan (other than
a Specially Serviced Mortgage Loan) and the Special Servicer may in its
discretion waive any Penalty Charge in connection with any delinquent payment on
a Specially Serviced Mortgage Loan.
(b) With respect to each Mortgage Loan, if required by the terms of the
related Mortgage, any Lock-Box Agreement or similar agreement, the Master
Servicer shall establish and maintain one or more accounts ("Lock-Box Accounts")
to be held outside the Trust and maintained by the Master Servicer in accordance
with the terms of the related Mortgage, any Lock-Box Agreement or similar
agreement. Subject to the terms of the related Mortgage, any Lock-Box Agreement
or similar agreement, Lock-Box Accounts shall be Eligible Accounts. The Master
Servicer shall apply the funds deposited in such accounts in accordance with the
terms of the related Mortgage, any Lock-Box Agreement and/or any similar
agreement and in accordance with the Servicing Standard.
Section 8.3 Collection of Taxes, Assessments and Similar Items; Servicing
Accounts and Reserve Accounts.
(a) The Master Servicer shall establish and maintain one or more accounts
(the "Servicing Accounts"), into which all Escrow Payments shall be deposited
and retained. Subject to the terms of the related Mortgage Note and Mortgage,
Servicing Accounts shall be Eligible Accounts. Withdrawals of amounts so
collected in respect of any Mortgage Loan (and interest earned thereon) from a
Servicing Account may be made only to: (i) effect payment of real estate taxes,
assessments, insurance premiums, ground rents (if applicable) and comparable
items in
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respect of the related Mortgaged Property; (ii) reimburse the Master Servicer,
the Special Servicer, the Trustee or the Fiscal Agent, as applicable, for any
unreimbursed Servicing Advances made thereby to cover any of the items described
in the immediately preceding clause (i); (iii) refund to the related Mortgagor
any sums as may be determined to be overages; (iv) pay interest, if required and
as described below, to the related Mortgagor on balances in the Servicing
Account (or, if and to the extent not payable to the related Mortgagor, to pay
such interest to the Master Servicer or Special Servicer, as applicable); or (v)
clear and terminate the Servicing Account at the termination of this Agreement
in accordance with Section 10.1. As part of its servicing duties, the Master
Servicer shall pay or cause to be paid to the Mortgagors interest on funds in
Servicing Accounts maintained thereby, to the extent required by law or the
terms of the related Mortgage Loan.
(b) Each of the Master Servicer (with respect to Mortgage Loans other than
Specially Serviced Mortgage Loans) and the Special Servicer (with respect to the
Specially Serviced Mortgage Loans) shall (i) maintain accurate records with
respect to each related Mortgaged Property reflecting the status of real estate
taxes, assessments and other similar items that are or may become a lien thereon
and the status of insurance premiums and any ground rents payable in respect
thereof, and (ii) use reasonable efforts to obtain, from time to time, all bills
for the payment of such items (including renewal premiums); and the Master
Servicer shall effect payment thereof (in the case of Specially Serviced
Mortgage Loans, at the direction of the Special Servicer) prior to the
applicable penalty or termination date, employing for such purpose Escrow
Payments as allowed under the terms of the related Mortgage Loan. To the extent
that a Mortgage Loan does not require a Mortgagor to escrow for the payment of
real estate taxes, assessments, insurance premiums, ground rents (if applicable)
and similar items, the Master Servicer (or the Special Servicer with respect to
the Specially Serviced Mortgaged Loans) shall use efforts consistent with the
Servicing Standard to cause the related Mortgagor to comply with the
requirements of the related Mortgage for payments in respect of such items at
the time they first become due.
(c) In accordance with the Servicing Standard, the Master Servicer (at the
direction of the Special Servicer in the case of Specially Serviced Mortgage
Loans) shall, subject to Section 4.4, advance with respect to each related
Mortgaged Property all such funds as are necessary for the purpose of effecting
the payment of (i) real estate taxes, assessments and other similar items that
are or may become a lien thereon, (ii) ground rents (if applicable), and (iii)
premiums on Insurance Policies, in each instance if and to the extent that
Escrow Payments, if any, collected from the related Mortgagor are insufficient
to pay such item when due and the related Mortgagor has failed to pay such item
on a timely basis. All such advances shall be reimbursable in the first instance
from related collections from the Mortgagors, and further as provided in Section
5.2. No costs incurred by the Master Servicer or the Special Servicer in
effecting the payment of real estate taxes, assessments, ground rents (if
applicable) and other similar items on or in respect of the Mortgaged Properties
shall, for purposes hereof, including, without limitation, calculating monthly
distributions to Certificateholders, be added to the unpaid principal balances
of the related Mortgage Loans, notwithstanding that the terms of such Mortgage
Loans so permit.
(d) The Master Servicer shall establish and maintain, as applicable, one or
more
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accounts (the "Reserve Accounts"), into which all Reserve Funds, if any, shall
be deposited and retained. Withdrawals of amounts so deposited may be made to
pay for, or to reimburse the related Mortgagor in connection with, the related
repairs, environmental remediation, replacements, capital improvements and/or
similar items at the related Mortgaged Property if such repairs, environmental
remediation, replacements, capital improvements and/or similar items have been
completed, and such withdrawals are made, in accordance with the Servicing
Standard and the terms of the related Mortgage Note, Mortgage and any agreement
with the related Mortgagor governing such Reserve Funds. Subject to the terms of
the related Mortgage Note and Mortgage, all Reserve Accounts shall be Eligible
Accounts.
Section 8.4 Sub-Servicing Agreements.
(a) The Master Servicer and the Special Servicer may each enter into
Sub-Servicing Agreements for the servicing and administration of all or a part
of the Mortgage Loans for which it is responsible hereunder, provided that, in
each case, the Sub-Servicing Agreement: (i) is not inconsistent with this
Agreement and shall provide that the Sub-Servicer will maintain errors and
omissions insurance and fidelity bond coverage as required of the Master
Servicer or the Special Servicer (whichever retained it) under Section 8.5
hereof; (ii) provides that if the Master Servicer or the Special Servicer, as
the case may be, shall for any reason no longer be the Master Servicer or
Special Servicer, as applicable, hereunder (including, without limitation, by
reason of an Event of Default and its termination hereunder), the Trustee or its
designee may either thereupon assume all of the rights and, except to the extent
they arose prior to the date of assumption, obligations of the Master Servicer
or the Special Servicer, as the case may be, under such agreement or,
alternatively, may terminate such agreement without payment of any termination
fee or penalty out of the Trust; (iii) in the case of a Sub-Servicing Agreement
entered into by the Master Servicer, expressly or effectively provides that (if
the Master Servicer and the Special Servicer are not the same Person) such
agreement shall terminate with respect to any Mortgage Loan serviced thereunder
at the time such Mortgage Loan becomes a Specially Serviced Mortgage Loan
(provided that such agreement may provide that such Mortgage Loan may again be
serviced thereunder if it becomes a Corrected Mortgage Loan); and (iv) in the
case of a Sub-Servicing Agreement entered into by the Special Servicer, relates
only to Specially Serviced Mortgage Loans or REO Properties and expressly or
effectively provides that (if the Master Servicer and the Special Servicer are
not the same Person) such agreement shall terminate with respect to any such
Mortgage Loan that becomes a Corrected Mortgage Loan. References in this
Agreement to actions taken or to be taken by the Master Servicer or the Special
Servicer, as the case may be, include actions taken or to be taken by a
Sub-Servicer on behalf of the Master Servicer or the Special Servicer, as the
case may be; and, in connection therewith, all amounts advanced by any
Sub-Servicer to satisfy the obligations of the Master Servicer or the Special
Servicer, as the case may be, hereunder to make Servicing Advances and P&I
Advances shall be deemed to have been advanced by the Master Servicer or the
Special Servicer, as the case may be, out of its own funds. For purposes of this
Agreement, the Master Servicer and the Special Servicer each shall be deemed to
have received any payment when the Sub-Servicer receives such payment. Annually,
in connection with the delivery of the Officer's Certificate contemplated in
Section 8.12, the Master Servicer and the Special Servicer each shall identify
to the other, the Trustee and the Depositor any Sub-Servicers then retained
thereby.
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(b) Each Sub-Servicer shall be authorized to transact business in the state
or states in which the Mortgaged Properties securing the Mortgage Loans it is to
service are situated, if and to the extent required by applicable law.
(c) As part of its servicing activities hereunder, the Master Servicer and
the Special Servicer, for the benefit of the Trustee and the Certificateholders,
shall (at no expense to the Trustee, the Certificateholders or the Trust Fund)
monitor the performance and enforce the obligations of each Sub-Servicer
retained by it under the related Sub-Servicing Agreement. Such enforcement,
including, without limitation, the legal prosecution of claims, termination of
Sub-Servicing Agreements in accordance with their respective terms and the
pursuit of other appropriate remedies, shall be in such form and carried out to
such an extent and at such time as the Master Servicer or the Special Servicer,
as the case may be, would require were it the owner of the Mortgage Loans.
Subject to the terms of the applicable Sub-Servicing Agreement, the Master
Servicer and the Special Servicer each shall have the right to remove a
Sub-Servicer retained by it at any time it considers such removal to be in the
best interests of Certificateholders.
(d) In the event the Trustee or its designee assumes the rights and
obligations of the Master Servicer or the Special Servicer under any
Sub-Servicing Agreement, the Master Servicer or the Special Servicer, as the
case may be, at its expense shall, upon request of the Trustee, deliver to the
assuming party all documents and records relating to such Sub-Servicing
Agreement and the Mortgage Loans then being serviced thereunder and an
accounting of amounts collected and held on behalf of it thereunder, and
otherwise use reasonable efforts to effect the orderly and efficient transfer of
the Sub-Servicing Agreement to the assuming party.
(e) Notwithstanding any Sub-Servicing Agreement, the Master Servicer and
the Special Servicer each shall remain obligated and liable to the Trustee and
the Certificateholders for the servicing and administration of the Mortgage
Loans in accordance with the provisions of this Agreement to the same extent and
under the same terms and conditions as if it alone were servicing and
administering the Mortgage Loans for which it is responsible.
Section 8.5 Maintenance of Insurance Policies; Errors and Omissions and
Fidelity Coverage.
(a) Each of the Master Servicer (in the case of Mortgage Loans other than
Specially Serviced Mortgage Loans) and the Special Servicer (in the case of
Specially Serviced Mortgage Loans) shall use reasonable efforts to cause each
Mortgagor to maintain in respect of the related Mortgaged Property all insurance
coverage (other than earthquake insurance) as is required under the related
Mortgage; provided that if any Mortgage permits the holder thereof to dictate to
the Mortgagor the insurance coverage to be maintained on such Mortgaged
Property, the Master Servicer or the Special Servicer, as appropriate, shall
impose such insurance requirements as are consistent with the Servicing
Standard. If a Mortgagor fails to maintain such insurance, the Master Servicer
(at the direction of the Special Servicer in the case of a Specially Serviced
Mortgage Loan) shall (to the extent available at commercially reasonable rates)
obtain such insurance (which may be through a master or single interest policy),
and the cost (including any deductible relating to such insurance) of such
insurance (or in the case of a master or single interest policy, the incremental
cost (including any deductible relating to such insurance) of such
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insurance relating to the specific Mortgaged Property), shall be a Servicing
Advance recoverable by the Master Servicer pursuant to Section 5.2. If at any
time a Mortgaged Property is located in an area identified in the Flood Hazard
Boundary Map or Flood Insurance Rate Map issued by the Federal Emergency
Management Agency as having special flood hazards or it becomes located in such
area by virtue of remapping conducted by such agency (and flood insurance has
been made available), the Master Servicer (or, in the case of a Specially
Serviced Mortgage Loan, the Special Servicer) shall, if and to the extent that
the Mortgage Loan requires the Mortgagor or permits the Mortgagee to require the
Mortgagor to do so, use efforts consistent with the Servicing Standard to cause
the related Mortgagor to maintain a flood insurance policy meeting the
requirements of the current guidelines of the Federal Insurance Administration
in an amount representing coverage of not less than the least of (i) the unpaid
principal balance of the related Mortgage Loan, (ii) the full insurable value of
such Mortgaged Property, (iii) the maximum amount of insurance coverage
available under the National Flood Insurance Act or 1968, the Flood Disaster
Protection Act of 1973 or the National Flood Insurance Reform Act of 1994, as
amended, and (iv) 100% of the replacement cost of the improvements on such
Mortgaged Property. If (i) the Mortgagor is required by the terms of the
Mortgage Loan to maintain such insurance (or becomes obligated by virtue of the
related Mortgaged Property becoming located in such area by virtue of such
remapping) or (ii) the terms of the Mortgage Loan permit the mortgagee to
require the Mortgagor to obtain such insurance, the Master Servicer (or, in the
case of a Specially Serviced Mortgage Loan, the Special Servicer) shall promptly
notify the Mortgagor of its obligation to obtain such insurance. If the
Mortgagor fails to obtain such flood insurance within 120 days of such
notification, the Master Servicer (at the direction of the Special Servicer in
the case of a Specially Serviced Mortgage Loan) shall obtain such insurance (to
the extent available at commercially reasonable rates), and the cost of such
insurance shall be a Servicing Advance recoverable by the Master Servicer
pursuant to Section 5.2. The Special Servicer shall also cause to be maintained
for each REO Property no less insurance coverage than was previously required of
the Mortgagor under the related Mortgage. All such insurance policies shall
contain a "standard" mortgagee clause or shall identify the Trustee as the named
insured, as applicable, with any loss payable to the Master Servicer (in the
case of Mortgaged Properties) or the Special Servicer (in the case of REO
Properties) on behalf of the Trustee. Any amounts collected by the Master
Servicer or the Special Servicer under any such policies (other than amounts to
be applied to the restoration or repair of the related Mortgaged Property or REO
Property or amounts to be released to the related Mortgagor, in each case in
accordance with applicable law, the terms of the related Mortgage Loan documents
and the Servicing Standard) shall be deposited in the Collection Account,
subject to withdrawal pursuant to Section 5.2. Any cost incurred by the Master
Servicer or the Special Servicer in maintaining any such insurance shall not,
for purposes hereof, including, without limitation, calculating monthly
distributions to Certificateholders, be added to the outstanding principal
balance of the related Mortgage Loan, notwithstanding that the terms of such
Mortgage Loan so permit.
(b) If the Master Servicer or the Special Servicer shall obtain and
maintain a blanket policy insuring against hazard losses on all of the Mortgaged
Properties and/or REO Properties for which it is responsible to cause the
maintenance of insurance hereunder, then, to the extent such policy provides
protection equivalent to the individual policies otherwise required, the Master
Servicer or the Special Servicer, as the case may be, shall conclusively be
deemed to have satisfied its obligation to cause hazard insurance to be
maintained on such Mortgaged
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Properties and/or REO Properties. Such policy may contain a deductible clause
(not in excess of a customary amount), in which case the Master Servicer or the
Special Servicer, as appropriate, shall, if there shall not have been maintained
on a Mortgaged Property or an REO Property a hazard insurance policy complying
with the requirements of Section 8.5(a), and there shall have been one or more
losses which would have been covered by such individual policy, promptly deposit
into the Collection Account from its own funds the amount of such loss or losses
that would have been covered under the individual policy but are not covered
under the blanket policy because of such deductible clause. The Master Servicer
and the Special Servicer each agrees to prepare and present, on behalf of
itself, the Trustee and Certificateholders, claims under any such blanket policy
maintained by it in a timely fashion in accordance with the terms of such
policy.
(c) Each of the Master Servicer and the Special Servicer shall obtain and
maintain at its own expense and keep in full force and effect throughout the
term of this Agreement a blanket fidelity bond and an errors and omissions
insurance policy covering its officers and employees and other persons acting on
behalf of it in connection with its activities under this Agreement. The amount
of coverage shall be at least equal to the coverage that would be required by
FNMA or FHLMC, whichever is greater, with respect to the Master Servicer or
Special Servicer, as the case may be, if the Master Servicer or Special
Servicer, as the case may be, were servicing and administering the Mortgage
Loans and/or REO Properties for which it is responsible hereunder for FNMA or
FHLMC. Coverage of the Master Servicer or the Special Servicer under a policy or
bond obtained by an Affiliate of such Person and providing the coverage required
by this Section 8.5(c) shall satisfy the requirements of this Section 8.5(c).
(d) All insurance coverage required to be maintained by the Master Servicer
or the Special Servicer under this Section 8.5 shall be obtained from Qualified
Insurers (A) whose claims-paying ability is rated at least investment grade (or,
in the case of a blanket hazard policy obtained in accordance with Section
8.5(b), rated in one of the three highest ratings categories) by each Rating
Agency or, if such claims- paying ability is not rated by DCR, by each of
Moody's and one other nationally recognized statistical rating organization or
(B) who are (as evidenced by the receipt of Rating Agency Confirmation)
otherwise acceptable to each Rating Agency.
Section 8.6 Enforcement of Due-On-Sale Clauses; Assumption Agreements;
Subordinate Financing.
(a) If any Mortgage Loan which contains a provision in the nature of a
"due-on-sale" clause, which by its terms:
(i) provides that such Mortgage Loan shall (or may at the mortgagee's
option) become due and payable upon the sale or other transfer of an
interest in the related Mortgaged Property; or
(ii) provides that such Mortgage Loan may not be assumed without the
consent of the 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, in the case of a Specially Serviced Mortgage Loan, the
Special Servicer, on behalf of the Trustee
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as the mortgagee of record, shall exercise (or, subject to Section 8.18(a)(ii),
waive its right to exercise) any right it may have with respect to such Mortgage
Loan (x) to accelerate the payments thereon, or (y) to withhold its consent to
any such sale or other transfer, in a manner consistent with the Servicing
Standard. In the event that the Master Servicer or Special Servicer intends or
is required, in accordance with the preceding sentence, the Mortgage Loan
documents or applicable law, to permit the transfer of any Mortgaged Property,
the Master Servicer or the Special Servicer, as the case may be, if consistent
with the Servicing Standard, may enter into a substitution of liability
agreement, pursuant to which the original Mortgagor and any original guarantors
are released from liability, and the transferee and any new guarantors are
substituted therefor and become liable under the Mortgage Note and any related
guaranties and, in connection therewith, may require from the related Mortgagor
a reasonable and customary fee for the additional services performed by it,
together with reimbursement for any related costs and expenses incurred by it
(but only to the extent that charging such fee will not be a significant
modification of the Mortgage Loan for purposes of the REMIC Provisions or result
in an Adverse REMIC Event in respect of any REMIC Pool). The Master Servicer or
the Special Servicer, as the case may be, shall promptly notify the Trustee of
any such agreement and forward the original thereof to the Trustee for inclusion
in the related Mortgage File.
(b) If any Mortgage Loan which 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 additional lien or
other encumbrance on the related Mortgaged Property; or
(ii) requires the consent of the mortgagee to the creation of any such
additional lien or other encumbrance on the related Mortgaged Property,
then, for so long as such Mortgage Loan is included in the Trust Fund, the
Master Servicer or, in the case of a Specially Serviced Mortgage Loan, the
Special Servicer, on behalf of the Trustee as the mortgagee of record, shall
exercise (or, subject to Section 8.18(a)(ii), waive its right to exercise) any
right it may have with respect to such Mortgage Loan (x) to accelerate the
payments thereon, or (y) to withhold its consent to the creation of any such
additional lien or other encumbrance, in a manner consistent with the Servicing
Standard.
(c) Nothing in this Section 8.6 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 additional lien or other encumbrance with respect to such
Mortgaged Property.
(d) Except as otherwise permitted by Section 8.18, neither the Master
Servicer nor the Special Servicer shall agree to modify, waive or amend any term
of any Mortgage Loan in connection with the taking of, or the failure to take,
any action pursuant to this Section 8.6.
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Section 8.7 Realization Upon Defaulted Mortgage Loans.
(a) The Master Servicer shall notify the Special Servicer of the occurrence
of a Servicing Transfer Event in respect of any Mortgage Loan; and, subject to
Section 8.18, the Special Servicer shall monitor such Mortgage Loan, evaluate
whether the causes of any default thereunder can be corrected over a reasonable
period without significant impairment of the value of the related Mortgaged
Property, initiate corrective action in cooperation with the Mortgagor if, in
the Special Servicer's reasonable and good faith judgment, cure is likely, and
take such other actions as are consistent with the Servicing Standard. If, in
the Special Servicer's reasonable and good faith judgment, such corrective
action has been unsuccessful, no satisfactory arrangement can be made for
collection of delinquent payments and no other alternative consistent with the
Servicing Standard can be negotiated, and the defaulted Mortgage Loan has not
been released from the Trust Fund pursuant to any provision hereof, then the
Special Servicer shall, subject to subsections (b) through (d) of this Section
8.7, exercise reasonable efforts, consistent with the Servicing Standard, to
foreclose upon or otherwise comparably convert (which may include an REO
Acquisition) the ownership of property securing such Mortgage Loan. The
foregoing is subject to the provision that, in any case in which a Mortgaged
Property shall have suffered damage from an Uninsured Cause, the Master Servicer
and the Special Servicer shall each have the right but not the obligation to
expend its own funds toward the restoration of such property if it shall
determine in its reasonable discretion (i) that such restoration will increase
the net proceeds of liquidation of such Mortgaged Property to Certificateholders
after reimbursement to itself for such expenses, and (ii) that such expenses
will be recoverable as Servicing Advances by the Master Servicer or Special
Servicer, as the case may be, out of the proceeds of liquidation of such
Mortgaged Property, as contemplated in Section 5.2. The Special Servicer (or, at
the direction of the Special Servicer, the Master Servicer) shall be responsible
for all other costs and expenses incurred by it in any such proceedings, subject
to its being entitled to reimbursement therefor as a Servicing Advance as
provided in Section 4.2 or Section 5.2, and further subject to its being
entitled to pay out of the related Liquidation Proceeds any Liquidation Expenses
incurred in respect of any Mortgage Loan, which Liquidation Expenses were
outstanding at the time such proceeds are received. When applicable state law
permits the Special Servicer to select between judicial and non-judicial
foreclosure in respect of any Mortgaged Property, the Special Servicer shall
make such selection in a manner consistent with the Servicing Standard. Nothing
contained in this Section 8.7 shall be construed so as to require the Special
Servicer, on behalf of the Trust Fund, to make a bid on any Mortgaged Property
at a foreclosure sale or similar proceeding that is in excess of the fair market
value of such property, as determined by the Special Servicer in its sole
judgment taking into account the factors described in Section 8.31(f) and the
results of any Appraisal obtained pursuant to this Agreement, all such bids to
be made in a manner consistent with the Servicing Standard. If and when the
Master Servicer or the Special Servicer deems it necessary and prudent for
purposes of establishing the fair market value of any Mortgaged Property
securing a defaulted Mortgage Loan, whether for purposes of bidding at
foreclosure or otherwise, the Master Servicer or the Special Servicer, as the
case may be, is authorized to have an Appraisal performed with respect to such
property (the cost of which Appraisal shall be covered by, and be reimbursable
as, a Servicing Advance).
(b) The Special Servicer shall not acquire any personal property pursuant
to this Section 3.09 (with the exception of cash or cash equivalents pledged as
collateral for a Mortgage
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Loan) unless either:
(i) such personal property is incident to real property (within the
meaning of Section 856(e)(1) of the Code) so acquired by the Special
Servicer; or
(ii) the Special Servicer shall have obtained an Opinion of Counsel
(the cost of which may be withdrawn from the Collection Account pursuant to
Section 5.2) to the effect that the holding of such personal property by
the Trust Fund will not cause the imposition of a tax on the Trust Fund
under the REMIC Provisions or cause any of REMIC I, REMIC II or REMIC III
to fail to qualify as a REMIC at any time that any Certificate is
outstanding.
(c) Notwithstanding the foregoing provisions of this Section 8.7, neither
the Master Servicer nor the Special Servicer shall, on behalf of the Trustee,
initiate foreclosure proceedings, obtain title to a Mortgaged Property in lieu
of foreclosure or otherwise, have a receiver of rents appointed with respect to
any Mortgaged Property, or take any other action with respect to any Mortgaged
Property, if, as a result of any such action, the Trustee, on behalf of 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 CERCLA or any comparable law, unless
(as evidenced by an Officer's Certificate to such effect delivered to the
Trustee) the Special Servicer has previously received an Environmental
Assessment in respect of such Mortgaged Property prepared by a Person who
regularly conducts Environmental Assessments and the Special Servicer, based
solely (as to environmental matters and related costs) on the information set
forth in such Environmental Assessment, determines that:
(i) the Mortgaged Property is in compliance with applicable
Environmental Laws or, if not, that acquiring such Mortgaged Property and
taking such actions as are necessary to bring the Mortgaged Property in
compliance therewith is reasonably likely to produce a greater recovery to
Certificateholders on a present value basis than not acquiring such
Mortgaged Property and not taking such actions; and
(ii) there are no circumstances or conditions present at the Mortgaged
Property relating to the use, management or disposal of Hazardous Materials
for which investigations, testing, monitoring, containment, clean-up or
remediation could be required under any applicable environmental laws and
regulations or, if such circumstances or conditions are present for which
any such action could be required, that acquiring such Mortgaged Property
and taking such actions with respect to such Mortgaged Property is
reasonably likely to produce a greater recovery to Certificateholders on a
present value basis than not acquiring such Mortgaged Property and not
taking such actions.
The cost of any such Environmental Assessment, as well as the cost of any
remedial, corrective or other further action contemplated by clause (i) and/or
clause (ii) of the preceding paragraph, may be withdrawn from the Collection
Account by the Master Servicer as an expense of the Trust pursuant to Section
5.2; and if any such Environmental Assessment so warrants, the Special Servicer
shall, at the expense of the Trust payable out of the Collection Account
pursuant to Section 5.2, perform such additional environmental testing as is
consistent with the Servicing
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Standard to determine whether the conditions described in clauses (i) and (ii)
of the preceding paragraph have been satisfied.
(d) If the environmental testing contemplated by subsection (c) above
establishes that either of the conditions set forth in clauses (i) and (ii) of
the first sentence thereof has not been satisfied with respect to any Mortgaged
Property securing a defaulted Mortgage Loan, then the Special Servicer shall
take such action as it deems to be in the best economic interest of the Trust
Fund (other than proceeding to acquire title to the Mortgaged Property) and is
hereby authorized at such time as it deems appropriate to release all or a
portion of such Mortgaged Property from the lien of the related Mortgage.
(e) The Special Servicer shall provide monthly to the Master Servicer, who
shall, in turn, promptly deliver copies thereof to the Trustee, written reports
regarding any actions taken by the Special Servicer with respect to any
Mortgaged Property securing a defaulted Mortgage Loan as to which the
environmental testing contemplated in subsection (c) above has revealed that
either of the conditions set forth in clauses (i) and (ii) of the first sentence
thereof has not been satisfied, in each case until the earliest to occur of
satisfaction of both such conditions, removal of the related Mortgage Loan from
the Trust Fund and release of the lien of the related Mortgage on such Mortgaged
Property. Within 5 days of its receipt thereof, the Trustee shall deliver a copy
of each such report to the Depositor and each Rating Agency.
(f) The Special Servicer shall report to the Internal Revenue Service and
the related Mortgagor, 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.
(g) The Special Servicer shall have the right to determine, in accordance
with the Servicing Standard, the advisability of the maintenance of an action to
obtain a deficiency judgment if the state in which the Mortgaged Property is
located and the terms of the Mortgage Loan permit such an action.
(h) The Special Servicer shall maintain accurate records, prepared by a
Servicing Officer, of each Final Recovery Determination in respect of a
defaulted Mortgage Loan or REO Property and the basis thereof. Each Final
Recovery Determination shall be evidenced by an Officer's Certificate delivered
to the Trustee and the Master Servicer no later than the 10th Business Day
following such Final Recovery Determination.
Section 8.8 Trustee to Cooperate; Release of Mortgage Files.
(a) Upon the payment in full of any Mortgage Loan, or the receipt by the
Master Servicer or the Special Servicer of a notification that payment in full
shall be escrowed in a manner customary for such purposes, the Master Servicer
or the Special Servicer, as the case may be, will immediately notify the Trustee
and request delivery of the related Mortgage File. Any such notice and request
shall be in the form of a Request for Release signed by a Servicing Officer and
shall include a statement to the effect that all amounts received or to be
received in connection with such payment which are required to be deposited in
the Collection Account
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pursuant to Section 5.1 have been or will be so deposited. Within four Business
Days (or within such shorter period as release can reasonably be accomplished if
the Master Servicer or the Special Servicer notifies the Trustee of an exigency)
of receipt of such notice and request, the Trustee shall release, or cause any
related Custodian to release, the related Mortgage File to the Master Servicer
or the Special Servicer, whichever requested it. No expenses incurred in
connection with any instrument of satisfaction or deed of reconveyance shall be
chargeable to the Collection Account.
(b) From time to time as is appropriate for servicing or foreclosure of any
Mortgage Loan, the Master Servicer or the Special Servicer may deliver to the
Trustee a Request for Release signed by a Servicing Officer thereof. Upon
receipt of the foregoing, the Trustee shall deliver or cause the related
Custodian to deliver, the Mortgage File or any document therein to the Master
Servicer or the Special Servicer, as the case may be. Upon return of such
Mortgage File or such document to the Trustee or the related Custodian, or the
delivery to 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 pursuant to Section 5.1 have been or will be so
deposited, or that such Mortgage Loan has become an REO Property, the Request
for Release shall be released by the Trustee to the Master Servicer or the
Special Servicer, as applicable.
(c) Within three Business Days (or within such shorter period as delivery
can reasonably be accomplished if the Special Servicer notifies the Trustee of
an exigency) of receipt thereof, the Trustee shall execute and deliver to the
Special Servicer any court pleadings, requests for trustee's sale or other
documents necessary to the foreclosure or trustee's sale in respect of a
Mortgaged Property or to any legal action brought to obtain judgment against any
Mortgagor on the Mortgage Note or Mortgage or to obtain a deficiency judgment,
or to enforce any other remedies or rights provided by the Mortgage Note or
Mortgage or otherwise available at law or in equity. The Special Servicer shall
be responsible for the preparation of all such documents and pleadings. When
submitted to the Trustee for signature, such documents or pleadings shall be
accompanied by a certificate of a Servicing Officer requesting that such
pleadings or documents be executed by the Trustee and certifying 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 related Mortgage, except for the termination of such a lien upon
completion of the foreclosure or trustee's sale.
Section 8.9 Documents, Records and Funds in Possession of Master Servicer
or Special Servicer to be Held for the Trustee for the Benefit of the
Certificateholders. Notwithstanding any other provisions of this Agreement, the
Master Servicer and the Special Servicer shall each transmit to the Trustee, to
the extent required by this Agreement, all documents and instruments coming into
the possession of the Master Servicer or the Special Servicer, as the case may
be, from time to time and shall account fully to the Trustee for any funds
received or otherwise collected thereby, including Liquidation Proceeds,
Condemnation Proceeds or Insurance Proceeds in respect of any Mortgage Loan or
REO Property. All Mortgage Loan documents and funds collected or held by, or
under the control of, the Master Servicer or the Special Servicer in respect of
any Mortgage Loans and/or REO Properties, whether from the collection of
principal and interest payments or from Liquidation Proceeds, Condemnation
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Proceeds or Insurance Proceeds or otherwise, including any funds on deposit in
the Collection Account, shall be held by the Master Servicer or the Special
Servicer, as the case may be, for and on behalf of the Trustee and the
Certificateholders and shall be and remain the sole and exclusive property of
the Trustee, subject to the applicable provisions of this Agreement. The Master
Servicer and the Special Servicer each agrees that it shall not create, incur or
subject any Mortgage Loan documents or any funds that are deposited in the
Collection Account or any Lock-Box Account, Reserve Account or Servicing
Account, or any funds that otherwise are or may become due or payable to the
Trustee, to any claim, lien, security interest, judgment, levy, writ of
attachment or other encumbrance, or assert by legal action or otherwise any
claim or right of setoff against any Mortgage Loan documents or any funds
collected on, or in connection with, a Mortgage Loan or REO Property, except,
however, that the Master Servicer and the Special Servicer each shall be
entitled to receive from any such funds any amounts that are properly due and
payable to the Master Servicer or the Special Servicer, as the case may be,
under this Agreement.
Section 8.10 Servicing Compensation.
(a) As compensation for its activities hereunder, the Master Servicer shall
be entitled to receive the Master Servicing Fee with respect to each Mortgage
Loan, including without limitation each Specially Serviced Mortgage Loan and
each REO Mortgage Loan. As to each Mortgage Loan, including without limitation
each Specially Serviced Mortgage Loan and each REO Mortgage Loan, the Master
Servicing Fee shall accrue on the related Scheduled Principal Balance of such
Mortgage Loan outstanding from time to time at the applicable Master Servicing
Fee Rate and shall be computed for the same period respecting which any related
interest payment due or deemed due on such Mortgage Loan is computed. The Master
Servicing Fee with respect to any Mortgage Loan or REO Loan shall cease to
accrue if a Liquidation Event occurs in respect thereof. The Master Servicing
Fee shall be payable monthly, on a loan-by-loan basis, from payments of interest
on each Mortgage Loan, REO Income allocable as interest on each REO Mortgage
Loan and the interest portion of P&I Advances on each Mortgage Loan, including
without limitation each REO Mortgage Loan. The Master Servicer shall be entitled
to recover unpaid Master Servicing Fees in respect of any Mortgage Loan,
including without limitation each REO Mortgage Loan, out of that portion of
related Insurance Proceeds, Condemnation Proceeds, Liquidation Proceeds,
Repurchase Proceeds or payments of Substitution Shortfall Amounts allocable as
recoveries of interest, to the extent permitted by Section 5.2. The Master
Servicer's right to receive the Master Servicing Fee may not be transferred in
whole or in part except in connection with the transfer of all of the Master
Servicer's responsibilities and obligations under this Agreement.
The Master Servicer shall be entitled to additional master servicing
compensation ("Additional Master Servicing Compensation") in the form of:
(i) any modification fees, assumption fees, ancillary fees not
otherwise addressed herein and, to the extent not otherwise applied to pay
Advance Interest as provided herein, Penalty Charges collected on Mortgage
Loans other than Specially Serviced Mortgage Loans and REO Mortgage Loans;
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(ii) any Prepayment Interest Excesses collected on the Mortgage Loans,
including without limitation Specially Serviced Mortgage Loans and REO
Mortgage Loans, but only to the extent that the aggregate of all such
Prepayment Interest Excesses collected during each Collection Period
exceeds the Prepayment Interest Shortfalls incurred during such Collection
Period;
(iii) any Balloon Payment Interest Excesses collected on the Mortgage
Loans, including without limitation Specially Serviced Mortgage Loans and
REO Mortgage Loans, but only to the extent that the aggregate of all such
Balloon Payment Interest Excesses collected during each Collection Period
exceeds the Balloon Payment Interest Shortfalls incurred during such
Collection Period;
(iv) any interest and other income earned on the investment of funds
in the Collection Account, but only to the extent not applied to offset
losses on other investments of funds in the Collection Account; and
(v) any interest and other income earned on the investment of funds in
the Servicing Accounts maintained by the Master Servicer, but only to the
extent not required to be paid to Mortgagors under applicable law or the
terms of the respective Mortgage Loan documents.
(b) As compensation for its activities hereunder, the Special Servicer
shall be entitled to receive the Special Servicing Fee with respect to each
Specially Serviced Mortgage Loan and each REO Mortgage Loan. As to each
Specially Serviced Mortgage Loan and each REO Mortgage Loan, the Special
Servicing Fee shall accrue on the related Scheduled Principal Balance of such
Mortgage Loan outstanding from time to time at the Special Servicing Fee Rate
and shall be computed for the same period respecting which any related interest
payment due on such Specially Serviced Mortgage Loan or deemed to be due on such
REO Mortgage Loan is computed. The Special Servicing Fee with respect to each
Specially Serviced Mortgage Loan and each REO Mortgage Loan shall cease to
accrue if a Liquidation Event occurs in respect thereof. As to each Specially
Serviced Mortgage Loan and each REO Loan, earned but unpaid Special Servicing
Fees shall be payable monthly out of the same sources and at the same time (but
separate from) Master Servicing Fees payable to the Master Servicer in respect
of such Specially Serviced Mortgage Loan or REO Mortgage Loan.
As further compensation for its activities hereunder, the Special Servicer
shall be entitled to receive the Workout Fee with respect to each Corrected
Mortgage Loan. As to each Corrected Mortgage Loan, the Workout Fee shall be
payable from, and shall be calculated by application of the Workout Fee Rate to,
each collection of interest and principal received on such Mortgage Loan for so
long as it remains a Corrected Mortgage Loan. The Workout Fee with respect to
any Corrected Mortgage Loan will cease to be payable if a Servicing Transfer
Event occurs with respect thereto or if the related Mortgaged Property becomes
an REO Property; provided that a new Workout Fee will become payable if and when
such Mortgage Loan again becomes a Corrected Mortgage Loan. If the Special
Servicer is terminated other than for cause or resigns in accordance with
Section 8.23, it shall retain the right to receive any and all Workout Fees
payable in respect of Mortgage Loans that became Corrected Mortgage Loans during
the
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period that it acted as Special Servicer and were still such at the time of such
termination or resignation (and the successor Special Servicer shall not be
entitled to any portion of such Workout Fees), in each case until the Workout
Fee for any such loan ceases to be payable in accordance with the preceding
sentence.
As further compensation for its activities hereunder, the Special Servicer
shall also be entitled to receive a Liquidation Fee with respect to each
Specially Serviced Mortgage Loan or REO Property as to which it receives any
full or discounted payoff or any Liquidation Proceeds (other than in connection
with the purchase of any such Specially Serviced Mortgage Loan or REO Property
by the Master Servicer, the Special Servicer or the Majority Certificateholder
of the Controlling Class pursuant to Section 8.31(a) or by any Person entitled
to effect an optional termination of the Trust pursuant to Section 10.01). As to
each such Specially Serviced Loan or REO Property, the Liquidation Fee shall be
payable from, and shall be calculated by application of the Liquidation Fee Rate
to, such full or discounted payoff and/or such Liquidation Proceeds. The
Liquidation Fee with respect to any such Specially Serviced Mortgage Loan will
not be payable if such Mortgage Loan becomes a Corrected Mortgage Loan.
Notwithstanding anything herein to the contrary, no Liquidation Fee will be
payable from, or based upon the receipt of, Liquidation Proceeds collected as a
result of any purchase of a Specially Serviced Mortgage Loan or REO Property
described in the parenthetical to the first sentence of this paragraph;
provided, however, that if any such Liquidation Proceeds are received with
respect to any Corrected Mortgage Loan, and the Special Servicer is properly
entitled to a Workout Fee therefrom, such Workout Fee will be payable based on
and from the portion of such Liquidation Proceeds that constitute principal
and/or interest.
Notwithstanding anything to the contrary herein, a Liquidation Fee and a
Workout Fee relating to the same Mortgage Loan shall not be paid from the same
proceeds on or with respect to such Mortgage Loan.
As further compensation for its activities hereunder, the Special Servicer
will also be entitled to receive the Special Servicer Standby Fee. The Special
Servicer Standby Fee will accrue with respect to each Mortgage Loan (including
without limitation each Specially Serviced Mortgage Loan and each REO Mortgage
Loan), at the Special Servicer Standby Fee Rate on the basis of the same
principal amount and for the same period respecting which any related interest
payment due or deemed due on such Mortgage Loan is computed, and will be payable
by the Master Servicer out of its Master Servicing Fee with respect to such
Mortgage Loan for each Collection Period.
The Special Servicer shall be entitled to additional special servicing
compensation ("Additional Special Servicing Compensation") in the form of any
modification fees, assumption fees, ancillary fees not otherwise addressed
herein and, to the extent not otherwise applied to pay Advance Interest as
provided herein, Penalty Charges collected on Specially Serviced Mortgage Loans
and REO Mortgage Loans.
(c) The Master Servicer and the Special Servicer shall each be required to
pay out of its own funds all overhead and general and administrative expenses
incurred by it in connection with its servicing activities hereunder (including,
without limitation, payment of any
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amount due and owing to any Sub-Servicers retained by it and the premiums for
any blanket policy obtained by it insuring against hazard losses pursuant to
Section 8.5(b)), if and to the extent such expenses are not payable directly out
of the Collection Account, and neither the Master Servicer nor the Special
Servicer, as the case may be, shall be entitled to reimbursement except as
expressly provided in this Agreement.
Section 8.11 Master Servicer Reports; Account Statements.
(a) The Master Servicer shall deliver to the Trustee, no later than the
Report Date, the Master Servicer Remittance Report with respect to the related
Distribution Date. The Special Servicer shall provide all information relating
to Specially Serviced Mortgage Loans and REO Properties to permit the Master
Servicer to satisfy its duties in this Section 8.11.
(b) The Master Servicer shall deliver to the Trustee within 30 days
following each Master Servicer Remittance Date a statement setting forth the
status of the Collection Account as of the close of business on such Master
Servicer Remittance Date showing, for the period covered by such statement, the
aggregate of deposits of each type provided in Section 5.1 in, and the aggregate
of withdrawals of each type provided in Section 5.2 from, the Collection
Account.
Section 8.12 Annual Statement as to Compliance. The Master Servicer and the
Special Servicer shall each deliver to the Depositor, the Operating Adviser and
the Trustee (and, in the case of the Special Servicer, to the Master Servicer)
on or before March 31 of each year after 1997 (or, as to 1998 and, if the
Depositor provides 30 days' prior notice, any subsequent year during which the
Depositor must file with the Securities and Exchange Commission a Report on Form
10-K in respect of the Trust pursuant to the requirements of the Exchange Act,
on or before March 15 of such year), an Officer's Certificate stating, as to the
signer thereof, that (a) a review of the activities of the Master Servicer or
the Special Servicer, as the case may be, during the preceding calendar year or
portion thereof and of the performance of the Master Servicer or the Special
Servicer, as the case may be, under this Agreement has been made under such
officer's supervision and (b) to the best of such officer's knowledge, based on
such review, the Master Servicer or the Special Servicer, as the case may be,
has fulfilled all its obligations under this Agreement in all material respects
throughout such year, or, if there has been a default in the fulfillment of any
such obligation, specifying each such default known to such officer and the
nature and status thereof. The Master Servicer and the Special Servicer shall
each forward to the Rating Agencies a copy of each such statement delivered by
it to the Depositor and the Trustee
Section 8.13 Annual Independent Public Accountants' Servicing Report.
On or before April 15 of each year after 1997 (or, as to 1998 and, if
Depositor provides 90 days' prior notice, any subsequent year during which the
Depositor must file with the Securities and Exchange Commission a Report on Form
10-K in respect of the Trust pursuant to the requirements of the Exchange Act,
on or before March 15 of such year), the Master Servicer at its expense shall
cause a firm of Accountants to furnish a statement to the Depositors, the
Operating Adviser and the Trustee to the effect that (i) it has obtained a
letter of representation
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regarding certain matters from the management of the Master Servicer, which
includes an assertion that the Master Servicer has complied with certain minimum
mortgage loan servicing standards (to the extent applicable to commercial and
multifamily mortgage loans), identified in the Uniform Single Attestation
Program for Mortgage Bankers established by the Mortgage Bankers Association of
America, with respect to the servicing of commercial and multifamily mortgage
loans during the most recently completed calendar year and (ii) on the basis of
an examination conducted by such firm in accordance with standards established
by the American Institute of Certified Public Accountants, such representation
is fairly stated in all material respects, subject to such exceptions and other
qualifications that may be appropriate. In rendering its report such firm may
rely, as to matters relating to the direct servicing of commercial and
multifamily mortgage loans by Sub-Servicers, upon comparable reports of firms of
independent certified public accountants rendered on the basis of examinations
conducted in accordance with the same standards (rendered within one year of
such report) with respect to those Sub-Servicers.
The Special Servicer will deliver to the Depositor, the Operating Adviser,
the Trustee and the Master Servicer an annual accountants' report only if, and
in such form as may be, requested by the Rating Agencies.
The Master Servicer and the Special Servicer, to the extent applicable,
shall each, with 90 days' prior notice, use reasonable efforts to cause the
applicable Accountants to cooperate with the Depositor in conforming any reports
delivered pursuant to this Section 8.13 to requirements imposed by the
Commission on the Depositor in connection with the Commission's issuance of a
no-action letter relating to the Depositor's reporting requirements in respect
of the Trust Fund pursuant to the Exchange Act.
The Master Servicer and the Special Servicer shall each forward to the
Rating Agencies a copy of each statement delivered by it to the Depositor and
the Trustee pursuant to this Section 8.13.
Section 8.14 Certain Reports Regarding the Mortgage Loans and the Mortgaged
Properties.
(a) On or before the Report Date in each month, the Master Servicer shall
deliver to the Trustee a report containing information regarding the Mortgage
Loans as of the end of the related Collection Period, which report will contain
substantially the categories of information regarding the Mortgage Loans set
forth in Appendix II to the Prospectus Supplement, will be delivered in a format
mutually acceptable to the Master Servicer and the Trustee and will be updated
within a reasonable period after the requisite underlying information is
available.
(b) Not later than the Report Date occurring in June of each year,
beginning in June 1998, the Master Servicer shall, to the extent such
information was not already reported pursuant to Section 8.14(a), deliver to the
Trustee a report (the "Annual Report") for each Mortgage Loan, based on the most
recently available year-end financial statements and most recently available
rent rolls of each applicable Mortgagor (to the extent provided to the Master
Servicer by or on behalf of each Mortgagor, or, in the case of Specially
Serviced Mortgaged Loans and REO Mortgage Loans, as provided to or obtained by
the Special Servicer and
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forwarded to the Master Servicer, on or before April 15 of each such year),
containing such information and analyses for each Mortgage Loan as would
customarily be included in accordance with the Servicing Standard including,
without limitation, Debt Service Coverage Ratios and income.
(c) The Trustee shall send copies of the reports received by it pursuant to
Sections 8.14(a) and (b) to the Depositor and each Rating Agency.
Section 8.15 Certain Available Information and Related Rights of the Master
Servicer and the Special Servicer.
(a) Subject to the restrictions described below, the Master Servicer and
the Special Servicer shall each also afford the Rating Agencies, the Depositor,
the Trustee, the Fiscal Agent, the Special Servicer, the Underwriter, the
Operating Adviser, any Certificateholder, any Certificate Owner and any
Prospective Investor, upon reasonable notice and during normal business hours,
reasonable access to any and all additional relevant,
non-attorney-client-privileged records and documentation in its possession or
under its control regarding the Mortgage Loans, REO Properties and all accounts,
insurance policies and other relevant matters relating to this Agreement, and
access to Servicing Officers of the Master Servicer or Special Servicing
Officers of the Special Servicer, as the case may be, responsible for its
obligations hereunder. Copies (or computer diskettes or other digital or
electronic copies of such information if reasonably available in lieu of paper
copies) of any and all of the foregoing items shall be made available by the
Master Servicer or the Special Servicer, as the case may be, upon request;
provided, however, that the Master Servicer and the Special Servicer shall each
be permitted to require payment by the requesting party (other than the
Depositor, the Trustee, the Underwriter or either Rating Agency) of a sum
sufficient to cover the reasonable expenses actually incurred by the Master
Servicer or the Special Servicer, as the case may be, of providing access or
copies (including electronic or digital copies) of any such information
requested in accordance with the preceding sentence.
(b) Nothing herein shall be deemed to require the Master Servicer or
Special Servicer to confirm, represent or warrant the accuracy of (or to be
liable or responsible for) any other Person's information or report, included in
any communication from the other (unless the Master Servicer and the Special
Servicer are the same Person) or from a Mortgagor. Neither the Master Servicer
nor the Special Servicer shall have any liability to the Depositor, the Trustee,
any Certificateholder, any Certificate Owner, the Underwriter, either Rating
Agency or any other Person to whom it delivers information pursuant to this
Section 8.15 or any other provision of this Agreement for federal, state or
other applicable securities law violations relating to the disclosure of such
information. In the event any Person brings any claims relating to or arising
from the foregoing against the Master Servicer, the Special Servicer, the
Trustee or the Fiscal Agent, the Trust (from amounts held in the Collection
Account from time to time) shall hold harmless and indemnify the Master
Servicer, the Special Servicer, the Trustee or the Fiscal Agent, as the case may
be, from any loss or expense (including attorney fees) relating to or arising
from such claims.
(c) The Master Servicer and the Special Servicer shall each produce the
reports required of it under this Agreement; provided, however, that neither the
Master Servicer nor the Special Servicer shall be required to produce any ad hoc
non-standard written reports with respect
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to the Mortgage Loans. In the event the Master Servicer or the Special Servicer
elects to provide such reports, it may require the Person requesting such report
to pay a reasonable fee to cover the costs of the preparation thereof. Requests
for any such report shall be made, and any such report shall be disseminated,
through the Trustee.
(d) In connection with providing access to or copies of the items described
in the subsections (a), (b) and/or (c) of this Section 8.15 or in Section 8.16,
the Master Servicer, the Special Servicer and the Trustee may each require: (a)
in the case of Certificate Owners, a written confirmation executed by the
requesting Person, in form reasonably satisfactory to the Master Servicer, the
Special Servicer or the Trustee, as the case may be, generally to the effect
that such Person is a beneficial holder of Certificates, is requesting the
information solely for use in evaluating such Person's investment in the
Certificates and will otherwise keep such information confidential; and (b) in
the case of Prospective Investors, a written confirmation executed by the
requesting Person, in form reasonably satisfactory to the Master Servicer, the
Special Servicer or the Trustee, as the case may be, generally to the effect
that such Person is a prospective purchaser of a Certificate or an interest
therein, is requesting the information solely for use in evaluating a possible
investment in Certificates and will otherwise keep such information
confidential.
(e) The Master Servicer and the Special Servicer shall each provide or
cause to be provided to the OTS, the FDIC and any other federal or state banking
or insurance regulatory authority that may exercise authority over any
Certificateholder or Certificate Owner, access to any and all records and other
documentation regarding the Mortgage Loans and the Trust Fund within its control
which may be required by this Agreement or by applicable law. Such access shall
be afforded without charge but only upon reasonable prior written request and
during normal business hours at the offices of the Master Servicer or the
Special Servicer, as the case may be, designated by it.
(f) The Master Servicer and the Special Servicer shall each cooperate in
providing the Rating Agencies with such other pertinent information relating to
the Mortgage Loans as is or should be in their respective possession as the
Rating Agencies may reasonably request.
Section 8.16 Rule 144A Information. For so long as any of the
Non-Registered Certificates are "restricted securities" within the meaning of
Rule 144A under the Securities Act, the Master Servicer and the Special Servicer
agrees to provide to the Trustee, which in turn shall provide to any Holder,
Certificate Owner or Prospective Investor of such Certificates, upon the request
of such Holder, Certificate Owner or Prospective Investor subject to the other
provisions of this Section 8.16 and the provisions of subsections (b), (c) and
(d) of Section 8.15, any information prepared by or otherwise in the possession
or under the control of the Master Servicer or the Special Servicer, as the case
may be, that has not already been delivered to the Trustee and that is required
to be provided to such Holder, Certificate Owner or Prospective Investor to
satisfy the condition set forth in Rule 144A(d)(4) under the Securities Act,
including, without limitation, copies of the reports and information described
in subsection (a) of Section 8.15.
Any recipient of information provided pursuant to this Section 8.16 shall
agree that such information shall not be disclosed or used for any purpose other
than the evaluation of an
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investment in the Non-Registered Certificates. Unless the Master Servicer or the
Special Servicer chooses to deliver the information directly, the Trustee shall
be responsible for the physical delivery of the information requested pursuant
to this Section 8.16. As a condition to the Master Servicer or the Special
Servicer making any report or information available upon request to any Person
other than another parties hereto, the Master Servicer or the Special Servicer,
as the case may be, may require that the recipient of such information
acknowledge that the Master Servicer or the Special Servicer, as the case may
be, may contemporaneously provide such information to the Depositor, the
Trustee, the Underwriter and/or the Certificateholders and Certificate Owners.
The Master Servicer and the Special Servicer will each be permitted to require
payment of a sum by the requesting party (other than the Rating Agencies, the
Depositor, the Trustee or the Underwriter) sufficient to cover the reasonable
costs and expenses of making such information available.
Section 8.17 Inspections; Collection of Financial Statements.
(a) The Master Servicer shall perform (or cause to be performed) a physical
inspection of each Mortgaged Property (other than Mortgaged Properties
constituting REO Properties or collateral for Specially Serviced Mortgaged
Loans) at such times and in such manner as are consistent with the Servicing
Standard, but in any event at least once every two years (or, if the related
Mortgage Loan has a current balance of more than the lesser of $2,000,000 and 3%
of the then aggregate Stated Principal Balance of the Mortgage Pool, at least
once every year). The Master Servicer shall promptly prepare (or cause to be
prepared) a written report of each such inspection detailing the condition of
the Mortgaged Property and specifying the existence of (i) any vacancy in the
Mortgaged Property evident from such inspection that the Master Servicer deems
material, (ii) any sale, transfer or abandonment of the Mortgaged Property
evident from such inspection, (iii) any adverse change in the condition or value
of the Mortgaged Property evident from such inspection that the Master Servicer
deems material, or (iv) any waste committed on the Mortgaged Property evident
from such inspection. The Master Servicer shall deliver to the Trustee a copy of
each such written report within 30 days of the related inspection; and, within 5
days of its receipt of each such written report, the Trustee shall forward a
copy to the Depositor and the Rating Agencies.
(b) The Special Servicer shall perform (or cause to be performed) a
physical inspection of each REO Property and each Mortgaged Property
constituting collateral for a Specially Serviced Mortgage Loan at such times and
in such manner as are consistent with the Servicing Standard, but in any event
at least once per calendar year. If any Mortgage Loan becomes a Specially
Serviced Mortgage Loan, then as soon as practicable (and in any event within 90
days thereafter) the Special Servicer shall perform (or cause to be performed) a
physical inspection of each Mortgaged Property constituting collateral for such
Mortgage Loan. The Special Servicer shall promptly prepare (or cause to be
prepared) a written report of each such inspection detailing the condition of
the Mortgaged Property and specifying the existence of (i) any vacancy in the
Mortgaged Property evident from such inspection that the Special Servicer deems
material, (ii) any sale, transfer or abandonment of the Mortgaged Property
evident from such inspection, (iii) any adverse change in the condition or value
of the Mortgaged Property evident from such inspection that the Special Servicer
deems material, or (iv) any waste committed on the Mortgaged Property evident
from such inspection. The Special Servicer shall deliver to
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the Master Servicer, who shall thereupon promptly deliver to the Trustee, a copy
of each such written report within 60 days of the related inspection; and,
within 5 days of its receipt of each such written report, the Trustee shall
forward a copy to the Depositor and the Rating Agencies.
(c) The Master Servicer (or, in the case of Specially Serviced Mortgage
Loans, the Special Servicer) shall make reasonable efforts to collect promptly
from each Mortgagor quarterly and annual operating statements and rent rolls of
the related Mortgaged Property, and financial statements of such Mortgagor, if
delivery of such items is required pursuant to the terms of the related
Mortgage. In addition, the Special Servicer shall use reasonable efforts to
obtain quarterly and annual operating statements and rent rolls with respect to
each REO Property. The Master Servicer and Special Servicer shall each deliver
copies of the collected items to the other such party and to the Trustee, in
each case within 20 days of its receipt thereof; and, within 5 days of its
receipt of any such item, the Trustee shall forward a copy to the Depositor and
the Rating Agencies.
Section 8.18 Modifications, Waivers, Amendments and Consents.
(a) The Special Servicer and the Master Servicer each may agree to any
modification, waiver or amendment of any term of, forgive interest on and
principal of, capitalize interest on, permit the release, addition or
substitution of collateral securing, and/or permit the release of the Mortgagor
on or any guarantor of any Mortgage Loan it is required to service and
administer hereunder, without the consent of the Trustee or, except as
contemplated by clause (i) and clause (iii) below, any Certificateholder,
subject, however, to each of the following limitations, conditions and
restrictions:
(i) other than as provided in Sections 8.2 and 8.6, the Master
Servicer (in such capacity) shall not in any event agree to any
modification, waiver or amendment of any term of, or take any of the other
acts referenced in this Section 8.18(a) with respect to, any Mortgage Loan
that would affect the amount or timing of any related payment of principal,
interest or other amount payable thereunder or, in the Master Servicer's
good faith and reasonable judgment, materially impair the security for such
Mortgage Loan or reduce the likelihood of timely payment of amounts due
thereon; and, other than as provided in Sections 8.2 and 8.6, the Special
Servicer (in such capacity) shall not agree to any modification, waiver or
amendment of any term of, or take any of the other acts referenced in this
Section 8.18(a) with respect to, a Specially Serviced Mortgage Loan that
would have any such effect, unless (A) a material default 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, waiver, amendment or other
action is reasonably likely to produce a greater recovery to
Certificateholders on a present value basis, than would liquidation, and
(B) if such modification, waiver or amendment accomplishes any of the
following, the Special Servicer has obtained the written consent of the
Holders of Certificates entitled to more than 50% of the Voting Rights
allocated to the most senior Class of Principal Balance Certificates then
outstanding (the Class A Certificates to be treated as a single Class for
this purpose) that has a Class Principal Balance at least equal to 25% of
its original Class Principal Balance: (1) extends the maturity date of such
Mortgage Loan beyond the third
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anniversary of its Stated Maturity Date, to a date later than three years
prior to the Final Rated Distribution Date or, in the case of any Mortgage
Loan secured by a Mortgage on the Mortgagor's leasehold estate, beyond the
date that is ten years prior to the expiration of such leasehold, (2)
reduces the Mortgage Rate of any Fixed Rate Mortgage Loan below the lesser
of 5% per annum and the then current rate on one-year Treasury securities,
or (3) permits the deferral of interest without the accrual of interest at
the related Mortgage Rate on the amount so deferred;
(ii) neither the Master Servicer nor the Special Servicer shall make
or permit any modification, waiver or amendment of any term of, or take any
of the other acts referenced in this Section 8.18(a) with respect to, any
Mortgage Loan that would (A) cause REMIC I, REMIC II or REMIC III to fail
to qualify as a REMIC under the Code or result in the imposition of any tax
on "prohibited transactions" or "contributions" after the Startup Day of
any such REMIC Pool under the REMIC Provisions, (B) cause any Mortgage Loan
to cease to be a "qualified mortgage" within the meaning of Section
860G(a)(3) of the Code or (C) give rise to an Adverse REMIC Event in
respect of any REMIC Pool (neither the Master Servicer nor the Special
Servicer shall be liable for judgments as regards decisions made under this
subsection which were made in good faith and, unless it would constitute
bad faith or negligence to do so, each of the Master Servicer and the
Special Servicer may rely on opinions of counsel (at the expense of the
Mortgagor or, if not available, at the expense of the Trust) in making such
decisions);
(iii) the Special Servicer shall not agree to extend the maturity date
of any Mortgage Loan to a date later than two years prior to the Final
Rated Distribution Date without the consent of all the Certificateholders;
(iv) neither the Master Servicer nor the Special Servicer shall permit
any Mortgagor to add or substitute any collateral for an outstanding
Mortgage Loan, which collateral constitutes real property, unless the
Master Servicer or the Special Servicer, as the case may be, shall have
first determined, in its reasonable and good faith judgment, based upon an
Environmental Assessment (and such additional environmental testing as the
Master Servicer or the Special Servicer, as the case may be, deems
necessary and appropriate) prepared by an Independent Person who regularly
conducts Environmental Assessments (and such additional environmental
testing), at the expense of the Mortgagor, that such additional or
substitute collateral is in compliance with applicable Environmental Laws
and that there are no circumstances or conditions present with respect to
such new collateral relating to the use, management or disposal of any
Hazardous Materials for which investigation, testing, monitoring,
containment, clean-up or remediation would be required under any then
applicable environmental laws and/or regulations; and
(v) neither the Master Servicer nor the Special Servicer shall release
or substitute any collateral securing an outstanding Mortgage Loan except
as provided in Section 8.7(d) and except in the case of a release where (A)
the use of the collateral to be released will not, in the Master Servicer's
or Special Servicer's, as the case may be, good faith and reasonable
judgment, materially and adversely affect the net cash flow being generated
by or the use of the related Mortgaged Property, (B) there is a
corresponding
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principal paydown of such Mortgage Loan in an amount at least equal to, or
a delivery of substitute collateral with an appraised value at least equal
to, the appraised value of the collateral to be released, (C) the remaining
Mortgaged Property and any substitute collateral is, in the Master
Servicer's or Special Servicer's, as the case may be, good faith and
reasonable judgment, adequate security for the remaining Mortgage Loan and
(D) such release and/or substitution would not result in the downgrade,
qualification or withdrawal of the rating then assigned by any Rating
Agency to any Class of Certificates (as confirmed in writing by each Rating
Agency);
provided that (x) the limitations, conditions and restrictions set forth in
clauses (i) through (v) above shall not apply to any modification of any term of
any Mortgage Loan or any of the other acts referenced in this Section 8.18(a)
that is required under the terms of such Mortgage Loan in effect on the Closing
Date, and (y) notwithstanding clauses (i) through (v) above, neither the Master
Servicer nor the Special Servicer shall be required to oppose the confirmation
of a plan in any bankruptcy or similar proceeding involving a Mortgagor if in
their reasonable and good faith judgment such opposition would not ultimately
prevent the confirmation of such plan or one substantially similar.
(b) The Special Servicer shall have no liability to the Trust Fund, the
Certificateholders or any other Person if its analysis and determination that
the modification, waiver, amendment or other action contemplated by Section
8.18(a) is reasonably likely to produce a greater recovery to Certificateholders
on a present value basis than would liquidation, should prove to be wrong or
incorrect, so long as the analysis and determination were made on a reasonable
basis in good faith by the Special Servicer and the Special Servicer was not
negligent in ascertaining the pertinent facts.
(c) Any payment of interest, which is deferred pursuant to any
modification, waiver or amendment permitted hereunder, shall not, for purposes
hereof, including, without limitation, calculating monthly distributions to
Certificateholders, be added to the unpaid principal balance of the related
Mortgage Loan, notwithstanding that the terms of such Mortgage Loan or such
modification, waiver or amendment so permit.
(d) The Master Servicer and, with respect to a Specially Serviced Mortgaged
Loan, the Special Servicer each may, as a condition to its granting any request
by a Mortgagor for consent, modification, waiver or indulgence or any other
matter or thing, the granting of which is within the Master Servicer's or the
Special Servicer's discretion pursuant to the terms of the instruments
evidencing or securing the related Mortgage Loan and is permitted by the terms
of this Agreement, require that such Mortgagor pay to it, as additional
servicing compensation, a reasonable or customary fee (not to exceed 1.0% of the
unpaid principal balance of the related Mortgage Loan) for the additional
services performed in connection with such request, together with any related
costs and expenses incurred by it.
(e) All modifications, waivers (except for waivers of Penalty Charges) and
amendments of the Mortgage Loans entered into pursuant to this Section 8.18
shall be in writing.
(f) Each of the Master Servicer and the Special Servicer shall notify the
Trustee
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and such other party, in writing, of any modification, waiver or amendment of
any term of any Mortgage Loan and the date thereof, and shall deliver to the
Trustee or the related Custodian for deposit in the related Mortgage File, an
original counterpart of the agreement relating to such modification, waiver or
amendment, promptly (and in any event within 10 Business Days) following the
execution thereof.
Section 8.19 Title to REO Property.
(a) If title to any REO Property is acquired, the deed or certificate of
sale shall be issued in the name of the Trustee on behalf of the
Certificateholders. The Special Servicer, on behalf of the Trust Fund, shall in
accordance with Section 8.31 attempt to sell any REO Property for cash within
two years after the Trust Fund acquires ownership of such REO Property for
purposes of Section 860G(a)(8) of the Code, unless the Special Servicer either
(i) applies for, more than 60 days prior to the expiration of such two-year
period, and is subsequently granted an extension of time (an "REO Extension") by
the Internal Revenue Service to sell such REO Property, or (ii) obtains for the
Trustee an Opinion of Counsel, addressed to the Trustee and the Special
Servicer, to the effect that the holding by the Trust Fund of such REO Property
subsequent to the second anniversary of such acquisition will not result in the
imposition of taxes on "prohibited transactions" of REMIC I, REMIC II or REMIC
III as defined in Section 860F of the Code or cause REMIC I, REMIC II or REMIC
III to fail to qualify as a REMIC at any time that any Certificates are
outstanding. If the Special Servicer is granted the REO Extension contemplated
by clause (i) of the immediately preceding sentence or obtains the Opinion of
Counsel contemplated by clause (ii) of the immediately preceding sentence, the
Special Servicer shall attempt to sell such REO Property within such period
longer than two years as is permitted by such REO Extension or is contemplated
by such Opinion of Counsel, as the case may be. Any expense incurred by the
Special Servicer in connection with its being granted the REO Extension
contemplated by clause (i) of the second preceding sentence or its obtaining the
Opinion of Counsel contemplated by clause (ii) of the second preceding sentence,
shall be an expense of the Trust Fund payable out of the Collection Account
pursuant to Section 5.2.
(b) The Special Servicer shall deposit, or cause to be deposited, in the
Collection Account, or shall deliver to the Master Servicer (which shall deposit
such amounts into the Collection Account), upon receipt, all REO Income (net of
the fees of any property manager and net of any expenses payable therefrom),
Insurance Proceeds, Condemnation Proceeds and Liquidation Proceeds received in
respect of an REO Property, subject to withdrawal pursuant to Section 5.2.
Section 8.20 Management of REO Property.
(a) Prior to the acquisition of title to any Mortgaged Property securing a
defaulted Mortgage Loan, the Special Servicer shall review the operation of such
Mortgaged Property and determine the nature of the income that would be derived
from such property if it were acquired by the Trust. If the Special Servicer
determines from such review, in its good faith and reasonable judgment, that:
(i) None of the income from Directly Operating such Mortgaged
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Property would be subject to tax as "net income from foreclosure property"
within the meaning of the REMIC Provisions or would be subject to the tax
imposed on "prohibited transactions" under Section 860F of the Code (either
such tax referred to herein as an "REO Tax"), then such Mortgaged Property
may be Directly Operated by the Special Servicer as REO Property;
(ii) Directly Operating such Mortgaged Property as an REO Property
could result in income from such Mortgaged Property that would be subject
to an REO Tax, but that a lease of such Mortgaged Property to another party
to operate such Mortgaged Property, or the performance of some services by
an Independent Contractor with respect to such Mortgaged Property, or
another method of operating such Mortgaged Property would not result in
income subject to an REO Tax, then the Special Servicer may (provided that,
in the good faith and reasonable judgment of the Special Servicer, it is
commercially feasible) acquire such Mortgaged Property as REO Property and
so lease or operate such REO Property; or
(iii) Directly Operating such Mortgaged Property as REO Property could
result in income subject to an REO Tax and, in the good faith and
reasonable judgment of the Special Servicer, that no commercially feasible
means exists to operate such Mortgaged Property as REO Property without the
Trust incurring or possibly incurring an REO Tax on income from such
Mortgaged Property, then the Special Servicer shall deliver to the Trustee,
in writing, a proposed plan (the "Proposed Plan") to manage such Mortgaged
Property as REO Property. Such plan shall include potential sources of
income, and to the extent commercially feasible, estimates of the amount of
income from each such source. Within a reasonable period of time after
receipt of such plan, the Trustee shall consult with the Special Servicer
and shall advise the Special Servicer of the Trust's federal income tax
reporting position with respect to the various sources of income that the
Trust would derive under the Proposed Plan. In addition, the Trustee shall
(to the maximum extent possible) advise the Special Servicer of the
estimated amount of taxes that the Trust would be required to pay with
respect to each such source of income. After receiving the information
described in the two preceding sentences from the Trustee, the Special
Servicer shall either (A) implement the Proposed Plan (after acquiring the
respective Mortgaged Property as REO Property) or (B) manage and operate
such REO Property in a manner that would not result in the imposition of an
REO Tax on the income derived from such REO Property.
The Special Servicer's decision as to how each REO Property shall be
managed and operated shall in any event be based on the good faith and
reasonable judgment of the Special Servicer as to which means would (to the
extent commercially feasible) maximize the net after-tax REO Income received by
the Trust with respect to such REO Property without materially and adversely
affecting the Special Servicer's ability to sell such REO Property in accordance
with this Agreement and, to the extent consistent with the foregoing, in
accordance with the same manner that the Special Servicer would operate and
manage such REO Property if it were owned by the Special Servicer. Both the
Special Servicer and the Trustee may consult with counsel knowledgeable in such
matters at the expense of the Trust Fund in connection with determinations
required under this Section 8.20(a). Neither the Special Servicer nor the
Trustee shall be liable
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to the Certificateholders, the Trust, the other parties hereto or each other for
errors in judgment made in good faith in the reasonable exercise of their
discretion while performing their respective responsibilities under this Section
8.20(a) or, to the extent it relates to federal income tax consequences for the
Trust, Section 8.20(b) below. Nothing in this Section 8.20(a) is intended to
prevent the sale of a Defaulted Mortgage Loan or REO Property pursuant to the
terms and subject to the conditions of Section 8.31.
(b) If title to any REO Property is acquired, the Special Servicer shall
manage, conserve, protect and operate such REO Property for the benefit of the
Certificateholders solely for the purpose of its prompt disposition and sale in
a manner that does not cause such REO Property to fail to qualify as
"foreclosure property" within the meaning of Section 860G(a)(8) of the Code or,
except as permitted by Section 8.20(a), result in the receipt by the Trust of
any "income from non-permitted assets" within the meaning of Section
860F(a)(2)(B) of the Code or any "net income from foreclosure property" which is
subject to taxation under the REMIC Provisions. Subject to the foregoing,
however, the Special Servicer shall have full power and authority to do any and
all things in connection therewith as are in the best interests of and for the
benefit of the Certificateholders (as determined by the Special Servicer in its
good faith and reasonable judgment) and, consistent therewith, shall direct the
Master Servicer to withdraw from the Collection Account, to the extent of
amounts on deposit therein with respect to each REO Property, and deliver to the
Special Servicer (for appropriate application), funds necessary for the proper
operation, management and maintenance of such REO Property, including, without
limitation:
(i) all insurance premiums due and payable in respect of such REO
Property;
(ii) all real estate taxes and assessments in respect of such REO
Property that may result in the imposition of a lien thereon;
(iii) any ground rents in respect of such REO Property; and
(iv) all costs and expenses necessary to maintain such REO Property.
To the extent that amounts on deposit in the Collection Account in respect of
any REO Property are insufficient for the purposes set forth in clauses (i) -
(iv) above with respect to such REO Property, the Master Servicer (at the
direction of the Special Servicer) shall advance from its own funds such amount
as is necessary for such purposes unless (as evidenced by an Officer's
Certificate delivered to the Trustee) the Special Servicer would not make such
advances if the Special Servicer owned such REO Property or if such advances
would, if made, constitute Nonrecoverable Advances; provided, however, that the
Master Servicer (at the direction of the Special Servicer) shall make any such
Servicing Advance if it is a necessary fee or expense incurred in connection
with the defense or prosecution of legal proceedings and such advance will be
deemed to constitute a recoverable Servicing Advance.
(c) The Special Servicer may contract with any Independent Contractor for
the operation and management of any REO Property, provided that:
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(i) the terms and conditions of any such contract may not be
inconsistent herewith and shall reflect an agreement reached at arm's
length;
(ii) the fees of such Independent Contractor (which shall be an
expense of the Trust, payable out of related REO Income) shall be
reasonable and customary in light of the nature and locality of the REO
Property;
(iii) any such contract shall require, or shall be administered to
require, that the Independent Contractor (A) pay all costs and expenses
incurred in connection with the operation and management of such REO
Property, including, without limitation, those listed in subsection (b) of
this Section 8.20 and (B) remit all related REO Income collected (net of
its fees and such costs and expenses) to the Special Servicer upon receipt;
(iv) none of the provisions of this Section 8.20(c) relating to any
such contract or to actions taken through any such Independent Contractor
shall be deemed to relieve the Special Servicer of any of its duties and
obligations hereunder with respect to the operation and management of any
such REO Property; and
(v) the Special Servicer shall be obligated with respect thereto to
the same extent as if it alone were performing all duties and obligations
in connection with the operation and management of such REO Property.
The Special Servicer shall be entitled to enter into any agreement with any
Independent Contractor performing services for it related to its duties and
obligations hereunder for indemnification of the Special Servicer by such
Independent Contractor, and nothing in this Agreement shall be deemed to limit
or modify such indemnification.
Section 8.21 Additional Obligations of the Master Servicer.
(a) In connection with each Adjustable Rate Mortgage Loan (including
without limitation any such Mortgage Loan that is an REO Mortgage Loan), the
Master Servicer shall calculate adjustments in the Mortgage Rate and the Monthly
Payment and, except in the case of an REO Mortgage Loan, shall notify the
Mortgagor of such adjustments, all in accordance with the Mortgage Note and
applicable law. In the event the Index for any such Adjustable Rate Mortgage
Loan is not published or is otherwise unavailable, the Master Servicer shall
select a comparable alternative index with respect to such Mortgage Loan over
which it has no direct control, which is readily verifiable and which is
acceptable under the terms of the related Mortgage Note.
(b) The Master Servicer and the Special Servicer shall each deliver to the
other and to the Trustee (for inclusion in the Mortgage File) copies of all
Appraisals, environmental reports and engineering reports (or, in each case,
updates thereof) obtained with respect to any Mortgaged Property or REO
Property.
(c) The Master Servicer shall deliver to the Trustee for deposit in the
Distribution Account on each P&I Advance Date, without any right of
reimbursement therefor,
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an amount equal to the excess, if any, of all Balloon Payment Interest
Shortfalls over all Balloon Payment Interest Excesses, in each case resulting
from Balloon Payments received in respect of the Mortgage Pool during the most
recently ended Collection Period.
(d) The Master Servicer shall deliver to the Trustee for deposit in the
Distribution Account on each P&I Advance Date, without any right of
reimbursement therefor, an amount equal to the lesser of (i) the excess, if any,
of all Prepayment Interest Shortfalls over all Prepayment Interest Excesses, in
each case resulting from Principal Prepayments received in respect of the
Mortgage Pool during the most recently ended Collection Period, and (ii) that
portion of the aggregate Master Servicing Fees received by the Master Servicer
during such Collection Period calculated in respect of all the Mortgage Loans
(including without limitation REO Mortgage Loans) at a rate of 0.05% per annum.
(e) With respect to each Callable Mortgage Loan, the Master Servicer shall
take all actions required under the related Call Option and applicable law
(including without limitation the giving of all notices in the appropriate
format(s)) to make such Mortgage Loan due and owing in its entirety as of the
Call Date.
Section 8.22 Representations, Warranties and Covenants of the Master
Servicer and the Special Servicer.
(a) GMACCM, in its capacity as both Master Servicer and Special Servicer
hereunder, hereby represents and warrants to the Trustee, for its own benefit
and the benefit of the Certificateholders, and to the Depositor, as of the
Closing Date, that:
(i) GMACCM is duly organized, validly existing and in good standing as
a corporation under the laws of the State of California, and shall be and
thereafter remain, in compliance with the laws of each State in which any
Mortgaged Property is located to the extent necessary to perform its
obligations under this Agreement, except where the failure to so qualify or
comply would not materially adversely affect the GMACCM's ability to
perform its obligations hereunder in accordance with the terms of this
Agreement;
(ii) GMACCM has the full power and authority to execute, deliver,
perform, and to enter into and consummate all transactions and obligations
contemplated by, this Agreement. GMACCM has duly and validly authorized the
execution, delivery and performance of this Agreement; and this Agreement,
assuming the due authorization, execution and delivery thereof by the other
parties hereto, evidences the valid and binding obligation of GMACCM
enforceable against GMACCM in accordance with its terms subject, as to
enforcement of remedies, (A) to applicable bankruptcy, reorganization,
insolvency, moratorium, receivership and other similar laws affecting
creditors' rights generally as from time to time in effect, (B) to general
principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law) and (C) public policy
considerations underlying the securities laws to the extent that such
considerations limit the enforceability of the provisions of the Agreement
that purport to provide for indemnification for securities law violations;
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(iii) the execution and delivery of this Agreement, the consummation
of the transactions contemplated hereby, and the fulfillment of or
compliance with the terms and conditions of this Agreement on the part of
GMACCM will not (A) result in a breach of any term or provision of its
charter or by-laws or (B) conflict with, result in a breach, violation or
acceleration of, or result in a default under, the terms of any other
material agreement or instrument to which it is a party or by which it may
be bound, or any law, governmental rule, regulation, or judgment, decree or
order applicable to it of any court, regulatory body, administrative agency
or governmental body having jurisdiction over it, which would materially
and adversely affect its ability to perform its obligations under this
Agreement;
(iv) no litigation is pending or, to GMACCM's knowledge, threatened
against it, the outcome of which could reasonably be expected to materially
and adversely affect the execution, delivery and performance by, or the
enforceability against, GMACCM of this Agreement or its ability to service
the Mortgage Loans or to perform any of its other obligations hereunder in
accordance with the terms hereof;
(v) no consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by GMACCM of, or compliance by GMACCM with, this Agreement, or
the consummation of the transactions contemplated hereby, other than any
such consents, approvals, authorizations, qualifications, registrations,
filings or notices as have been obtained or made or where the lack of such
consent, approval, authorization, qualification, registration, filing or
notice would not have a material adverse effect on the performance of
GMACCM under this Agreement; and
(vi) the performance of the services by the Master Servicer
contemplated by this Agreement are in the ordinary course of business of
the Master Servicer.
(b) It is understood that the representations and warranties set forth in
this Section 8.22 shall survive the execution and delivery of this Agreement.
(c) Upon discovery by any of the parties hereto of a breach of any of the
foregoing representations and warranties which materially and adversely affects
the interests of the Certificateholders or any party hereto, the party
discovering such breach shall give prompt written notice to each of the other
parties hereto.
(d) Any successor Master Servicer or Special Servicer shall be deemed to
have made, as of the date of its succession, each of the representations set
forth in Section 8.22(a), subject to such appropriate modifications to the
representation and warranty set forth in Section 8.22(a)(i) to accurately
reflect such successor's jurisdiction of organization and whether it is a
corporation, partnership, bank, association or other type of organization. In
any such case, the term "GMACCM" shall be deemed to mean Master Servicer or
Special Servicer, as appropriate.
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Section 8.23 Merger or Consolidation. Any Person into which the Master
Servicer or the Special Servicer may be merged or consolidated, or any Person
resulting from any merger, conversion, other change in form or consolidation to
which the Master Servicer or the Special Servicer shall be a party, or any
Person succeeding to the business of the Master Servicer or the Special
Servicer, shall be the successor of the Master Servicer or the Special Servicer,
as the case may be, hereunder, without the execution or filing of any paper or
any further act on the part of any of the parties hereto; provided, however,
that each Rating Agency provides the Trustee with written acknowledgment that
none of its ratings of the Certificates in effect immediately prior to such
merger, consolidation, or succession will be qualified, reduced or withdrawn as
a result of such merger, consolidation or succession.
Section 8.24 Resignation of Master Servicer or Special Servicer.
(a) Except as otherwise provided in Section 8.24(b) hereof, neither the
Master Servicer nor the Special Servicer shall resign from the obligations and
duties hereby imposed on it, unless there is a determination that its duties
hereunder are no longer permissible under applicable law or are in material
conflict by reason of applicable law with any other activities carried on by it
(the other activities so causing such conflict being of a type and nature
carried on by it at the date of this Agreement). Any such determination
permitting the resignation of the Master Servicer or the Special Servicer shall
be evidenced by an Opinion of Counsel to such effect delivered to the Trustee.
No such resignation shall become effective until a successor servicer designated
by the Trustee, with the consent of the Depositor, shall have assumed the Master
Servicer's or Special Servicer's, as the case may be, responsibilities and
obligations under this Agreement and Rating Agency Confirmation shall have been
obtained. Notice of such resignation shall be given promptly by the Master
Servicer or the Special Servicer, as the case may be, to the Trustee.
(b) The Master Servicer and the Special Servicer may each resign from the
obligations and duties imposed on it, upon 30 days notice to the Trustee,
provided that (i) a successor servicer (x) is available, (y) has assets of at
least $15,000,000 and (z) is willing to assume the obligations,
responsibilities, and covenants to be performed hereunder by the resigning party
Master Servicer on substantially the same terms and conditions, and for not more
than equivalent compensation, to that herein provided; (ii) the resigning party
bears all costs associated with its resignation and the transfer of servicing;
and (iii) Rating Agency Confirmation is obtained with respect to such servicing
transfer, as evidenced by a letter delivered to the Trustee by each Rating
Agency.
Section 8.25 Assignment or Delegation of Duties by Master Servicer or the
Special Servicer. The Master Servicer and the Special Servicer shall each have
the right without the prior written consent of the Trustee to assign and
delegate all of its duties hereunder; provided, however, that (i) the Master
Servicer or the Special Servicer, as the case may be, gives the Depositor and
the Trustee notice of such assignment and delegation; (ii) such purchaser or
transferee accepting such assignment and delegation executes and delivers to the
Depositor and the Trustee an agreement accepting such assignment, which contains
an assumption by such Person of the rights, powers, duties, responsibilities,
obligations and liabilities of the Master Servicer or the Special Servicer, as
the case may be, with like effect as if originally named as a
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party to this Agreement; (iii) the purchaser or transferee has assets in excess
of $15,000,000; (iv) each Rating Agency provides written acknowledgment that
none of its ratings of the Certificates in effect immediately prior to such
assignment and delegation will be qualified, withdrawn or downgraded as a result
of such assignment and delegation; and (v) the Depositor consents to such
assignment and delegation, such consent not be unreasonably withheld. In the
case of any such assignment and delegation in accordance with the requirements
of this Section, the Master Servicer or the Special Servicer, as the case may
be, shall be released from its obligations under this Agreement, except that the
Master Servicer or the Special Servicer, as the case may be, shall remain liable
for all liabilities and obligations incurred by it as the Master Servicer or the
Special Servicer, as the case may be, hereunder prior to the satisfaction of the
conditions to such assignment set forth in the preceding sentence.
Notwithstanding the above, each of the Master Servicer and the Special Servicer
may each appoint Sub-Servicers in accordance with Section 8.4 hereof and,
provided that the Master Servicer or the Special Servicer remains fully liable
for their actions, agents or independent contractors appointed or retained to
perform select duties thereof.
Section 8.26 Limitation on Liability of Master Servicer, Special Servicer
and Others.
(a) None of the Master Servicer, the Special Servicer or any of their
respective directors, officers, employees or agents shall be under any liability
to the holders of the Certificates, the Trust or any other party hereto for any
action taken or for refraining from the taking of any action in good faith using
reasonable business judgment pursuant to this Agreement; provided that this
provision shall not protect the Master Servicer, the Special Servicer or any
such Person against any breach of a representation, warranty or covenant
contained herein or any liability which would otherwise be imposed by reason of
willful misfeasance, bad faith or negligence in its performance of duties under
this Agreement or by reason of negligent disregard of obligations and duties
hereunder. The Master Servicer, the Special Servicer and any director, officer,
employee or agent of the Master Servicer or the Special Servicer may rely in
good faith on any document of any kind prima facie properly executed and
submitted by any Person respecting any matters arising hereunder. Neither the
Master Servicer nor the Special Servicer shall be under any obligation to appear
in, prosecute or defend any legal action which is not incidental to its duties
under this Agreement; provided that the Master Servicer and the Special Servicer
each may in its sole discretion undertake any such action which it may
reasonably deem necessary or desirable in order to protect the interests of the
Certificateholders and the Trustee in the Mortgage Loans for which it is
responsible hereunder or otherwise under this Agreement and shall undertake any
such action if instructed to do so by the Trustee. In such event, all legal
expenses and costs of such action shall be expenses and costs of the Trust, and
the Master Servicer or the Special Servicer, as applicable, shall be entitled to
be reimbursed therefor as Servicing Advances as provided by Section 5.2.
(b) In addition, neither the Master Servicer nor the Special Servicer shall
have any liability with respect to, and each shall be entitled to conclusively
rely as to the truth of the statements made and the correctness of the opinions
expressed therein on, any certificates or opinions furnished to the Master
Servicer or the Special Servicer, as the case may be, and conforming to the
requirements of this Agreement. Subject to the Servicing Standard, the Master
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and the Special Servicer each shall have the right to rely on information
provided to it by the other and by the Mortgagors, and will have no duty to
investigate or verify the accuracy thereof.
(c) Neither the Master Servicer nor the Special Servicer shall be obligated
to incur any liabilities, costs, charges, fees or other expenses which relate to
or arise from any breach of any representation, warranty or covenant made by the
Depositor, the Fiscal Agent or Trustee in this Agreement.
Section 8.27 Indemnification; Third-Party Claims.
(a) The Master Servicer, the Special Servicer and each of their respective
directors, officers, employees and agents shall be indemnified by the Trust and
held harmless against any and all claims, losses, penalties, fines, forfeitures,
legal fees and related costs, judgments and any other costs, liabilities, fees
and expenses incurred in connection with any legal action brought against the
Master Servicer, the Special Servicer or any such other Person relating to this
Agreement, the Certificates or any asset of the Trust Fund, other than any loss,
liability or expense: (i) specifically required to be borne by such Person
pursuant to the terms hereof; (ii) which constitutes a Servicing Advance (and is
otherwise specifically reimbursable hereunder); or (iii) which was incurred in
connection with claims against such party resulting from (A) any breach of a
representation, warranty or covenant made herein by such party, (B) willful
misfeasance, bad faith or negligence in the performance of obligations or duties
hereunder by such party, or from negligent disregard of such obligations or
duties, or (C) any violation by such party of any state or federal securities
law. Each of the Master Servicer and the Special Servicer shall promptly notify
the Trustee if a claim is made by a third party with respect to this Agreement,
the Certificates or any asset of the Trust Fund entitling the Master Servicer or
the Special Servicer, as the case may be, to indemnification hereunder,
whereupon the Trustee, on behalf of the Trust, shall assume the defense of any
such claim (with counsel reasonably satisfactory to the Master Servicer or the
Special Servicer, as applicable) and pay out of the Collection Account all
expenses in connection therewith, including counsel fees, and promptly pay,
discharge and satisfy out of the Collection Account any judgment or decree which
may be entered against it or them in respect of such claim. Any failure to so
notify the Trustee shall not affect any rights the Master Servicer or the
Special Servicer may have to indemnification under this Agreement or otherwise,
unless the Trust's defense of such claim is prejudiced thereby and the Trustee
delivers a certification explaining the prejudice. The Trustee or the Master
Servicer shall promptly make from the Collection Account any payments certified
by the Master Servicer or the Special Servicer to the Trustee as required to be
made to the Master Servicer or the Special Servicer, as the case may be,
pursuant to this Section 8.27(a). The indemnification provided herein shall
survive the resignation or termination of the Master Servicer or the Special
Servicer.
(b) The Master Servicer agrees to indemnify the Trust, the Trustee, the
Fiscal Agent, the Special Servicer (if different than the Master Servicer), the
Depositor, and any director, officer, employee or agent thereof, and hold them
harmless against any and all claims, losses, penalties, fines, forfeitures,
legal fees and related costs, judgments, and any other costs, liabilities, fees
and expenses that any of them may sustain arising from or as a result of the
willful misfeasance, bad faith or negligence in the performance of any of the
Master Servicer's duties hereunder or by reason of negligent disregard of the
Master Servicer's obligations and duties
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hereunder (including a breach of such obligations a substantial motive of which
is to obtain an economic advantage from being released from such obligations),
and if in any such situation the Master Servicer is replaced, the parties hereto
agree that the amount of such claims, losses, penalties, fines, legal fees and
related costs, judgments, and other costs, liabilities, fees and expenses shall
at least equal the incremental costs, if any, of retaining a successor master
servicer. Each of the Trustee, the Depositor, the Special Servicer (if different
than the Master Servicer), and the Fiscal Agent shall immediately notify the
Master Servicer if a claim is made by a third party with respect to this
Agreement, the Certificates or any asset of the Trust Fund entitling the Trust,
the Trustee, the Depositor, the Special Servicer or the Fiscal Agent, as the
case may be, to indemnification hereunder, whereupon the Master Servicer shall
assume the defense of any such claim (with counsel reasonably satisfactory to
the Trustee, the Depositor, the Special Servicer, or the Fiscal Agent, as
applicable) and pay all expenses in connection therewith, including counsel
fees, and promptly pay, discharge and satisfy any judgment or decree which may
be entered against it or them in respect of such claim. Any failure to so notify
the Master Servicer shall not affect any rights the Trust, the Trustee, the
Depositor, the Special Servicer, or the Fiscal Agent may have to indemnification
under this Agreement or otherwise, unless the Master Servicer's defense of such
claim is materially prejudiced thereby and the Master Servicer delivers a
certification explaining the prejudice. The indemnification provided herein
shall survive the termination of this Agreement and the resignation or
termination of the Master Servicer, the Special Servicer, the Trustee and the
Fiscal Agent.
(c) The Special Servicer agrees to indemnify the Trust, the Trustee, the
Fiscal Agent, the Master Servicer (if different than the Special Servicer), the
Depositor, and any director, officer, employee or agent thereof, and hold them
harmless against any and all claims, losses, penalties, fines, forfeitures,
legal fees and related costs, judgments, and any other costs, liabilities, fees
and expenses that any of them may sustain arising from or as a result of the
willful misfeasance, bad faith or negligence in the performance of any of the
Special Servicer's duties hereunder or by reason of reckless disregard of the
Special Servicer's obligations and duties hereunder by the Special Servicer.
Each of the Trustee, the Fiscal Agent, the Master Servicer (if different than
the Special Servicer) and the Depositor shall immediately notify the Special
Servicer if a claim is made by a third party with respect to this Agreement, the
Certificates or any asset of the Trust Fund entitling the Trust or the Trustee,
the Fiscal Agent, the Master Servicer or the Depositor, as the case may be, to
indemnification hereunder, whereupon the Special Servicer shall assume the
defense of any such claim (with counsel reasonably satisfactory to the Trustee,
the Fiscal Agent, the Master Servicer or the Depositor, as applicable) and pay
all expenses in connection therewith, including counsel fees, and promptly pay,
discharge and satisfy any judgment or decree which may be entered against it or
them in respect of such claim. Any failure to so notify the Special Servicer
shall not affect any rights the Trust or the Trustee, the Fiscal Agent, the
Master Servicer or the Depositor may have to indemnification under this
Agreement or otherwise, unless the Special Servicer's defense of such claim is
materially prejudiced thereby. The indemnification provided herein shall survive
the termination of this Agreement and the resignation or termination of the
Special Servicer, the Master Servicer, the Trustee and the Fiscal Agent.
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Section 8.28 Tax Reporting. From and after the Closing Date, the Special
Servicer shall comply with the Mortgagor tax reporting requirements imposed by
Sections 6050H, 6050J and 6050P of the Code with respect to any Specially
Serviced Mortgage Loan. The Special Servicer shall provide to the Master
Servicer copies of any such reports. The Master Servicer shall forward such
reports to the Trustee.
Section 8.29 Certain Special Servicer Reports.
(a) The Special Servicer, in the case of any Specially Serviced Mortgage
Loans, shall promptly (and at least on a monthly basis) prepare and deliver the
Specially Serviced Asset Report to the Master Servicer no later than one
Business Day after the first Determination Date occurring no earlier than thirty
days after (A) a Servicing Transfer Event, (B) the completion of a modification
which causes a Mortgage Loan to be a Corrected Mortgage Loan or (C) a Final
Recovery Determination, or at any time the Special Servicer determines, in its
sole discretion exercised in good faith, that a material change has occurred
relating to the Specially Serviced Mortgage Loans covered by the previous
Specially Serviced Asset Report. The Specially Serviced Asset Report shall
contain a narrative description for each Specially Serviced Mortgage Loan of the
current status of such Mortgage Loan including the status of any workout or
foreclosure, the change in such status since the prior Specially Serviced Asset
Report, and other information described in Exhibit F-3.
(b) The Special Servicer shall maintain accurate records, prepared by a
Servicing Officer, of each Final Recovery Determination with respect to any
Mortgage Loan or REO Property and the basis thereof. Each Final Recovery
Determination shall be evidenced by an Officer's Certificate delivered to the
Trustee, the Master Servicer and the Operating Adviser no later than the tenth
Business Day following such Final Recovery Determination.
(c) The Special Servicer, for each Specially Serviced Mortgage Loan, shall
provide to the Master Servicer no later than one Business Day after the
Determination Date in each month, a Special Servicer Monthly Report
substantially in the form of Exhibit F-2 or in such electronic format as is
mutually acceptable to the Master Servicer and the Special Servicer. The Master
Servicer may use such reports or information contained therein to prepare its
reports and may, at its option, forward such Special Servicer Monthly Reports
directly to the Trustee, the Depositor, the Operating Adviser and the Rating
Agencies.
(d) The Special Servicer shall provide to the Master Servicer, upon written
request, any information in its possession with respect to the Specially
Serviced Mortgage Loans and REO Properties which the Master Servicer shall
require in order for the Master Servicer to comply with its obligations under
this Agreement; provided that, in connection therewith, the Special Servicer
shall not be required to take any action or provide any information that the
Special Servicer determines will result in any material cost or expense for
which it is not entitled to reimbursement hereunder or will result in any
material liability for which it is not indemnified
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hereunder. The Master Servicer will provide the Special Servicer, at the request
of the Special Servicer, with any information in its possession with respect to
the Mortgage Loans which the Special Servicer shall require in order for the
Special Servicer to comply with its obligations under this Agreement.
(e) The Special Servicer shall deliver to the Master Servicer, the
Depositor, the Trustee and the Operating Adviser all such other information with
respect to the Specially Serviced Mortgage Loans and REO Properties at such
times and to such extent as the Master Servicer, the Depositor, the Trustee or
the Operating Adviser, as the case may be, may reasonably request; provided,
however, that the Special Servicer shall not be required to produce any ad hoc
non-standard written reports with respect to such Mortgage Loans except if any
Person (other than the Trustee) requesting such report pays a reasonable fee to
be determined by the Special Servicer.
Section 8.30 Qualification to Service. The Master Servicer and the Special
Servicer shall each keep in full force and effect such qualifications to do
business and any necessary licenses as are necessary to perform its duties under
this Agreement.
Section 8.31 Sale of Defaulted Mortgage Loans and REO Properties.
(a) If any Mortgage Loan becomes a Defaulted Mortgage Loan the Special
Servicer shall promptly so notify in writing the Trustee and the Master
Servicer, and the Trustee shall, within 10 days after receipt of such notice,
notify the Majority Certificateholder, if any, in respect of the Controlling
Class. The Majority Certificateholder of the Controlling Class may at its option
purchase from the Trust, at a price equal to the applicable Purchase Price, any
Defaulted Mortgage Loan (other than any such Defaulted Mortgage Loan that the
Special Servicer determines, in its reasonable and good faith judgment, is in
default to avoid a prepayment restriction). The Purchase Price for any such
Defaulted Mortgage Loan purchased by the Majority Certificateholder of the
Controlling Class shall be deposited into the Collection Account, and the
Trustee, upon receipt of an Officer's Certificate from the Master Servicer to
the effect that such deposit has been made, shall release or cause to be
released to the Certificateholder effecting such purchase the related Mortgage
File, and shall execute and deliver such instruments of transfer or assignment,
in each case without recourse, as shall be provided to it and are reasonably
necessary to vest in the Certificateholder effecting such purchase ownership of
such Mortgage Loan. In connection with any such purchase, the Special Servicer
shall deliver the related Servicing File to the Certificateholder effecting such
purchase.
If the Majority Certificateholder of the Controlling Class has not
purchased any such Defaulted Mortgage Loan within 30 days of its having received
notice in respect thereof pursuant to the preceding paragraph, then the Trustee
shall within 5 days of the end of such 30- day period send notice to the Master
Servicer and the Special Servicer that such Majority Certificateholder has not
purchased such Mortgage Loan, and either the Master Servicer or the Special
Servicer may at its option, within 30 days after receipt of such notice,
purchase such Defaulted Mortgage Loan (other than any such Defaulted Mortgage
Loan that the Special Servicer determines, in its reasonable and good faith
judgment, is in default to avoid a prepayment restriction) from the Trust, at a
price equal to the Purchase Price. The Purchase Price for any such Defaulted
Mortgage Loan purchased by the Master Servicer or the Special Servicer shall be
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deposited into the Collection Account, and the Trustee, upon receipt of an
Officer's Certificate from the Master Servicer to the effect that such deposit
has been made, shall release or cause to be released to the Master Servicer or
the Special Servicer, as applicable, the related Mortgage File, and shall
execute and deliver such instruments of transfer or assignment, in each case
without recourse, as shall be provided to it and are reasonably necessary to
vest in the Master Servicer or the Special Servicer, as applicable, the
ownership of such Mortgage Loan. In connection with any such purchase by the
Master Servicer, the Special Servicer shall deliver the related Servicing File
to the Master Servicer.
(b) The Special Servicer may offer to sell any Defaulted Mortgage Loan not
otherwise purchased pursuant to Section 8.31(a) above, if and when the Special
Servicer determines, consistent with the Servicing Standard, that such a sale
would be in the best economic interests of the Trust. Such offer shall be made
in a commercially reasonable manner (which, for purposes hereof, includes an
offer to sell without representation or warranty other than customary warranties
of title and condition, if liability for breach thereof is limited to recourse
against the Trust) for a period of not less than 30 or greater than 90 days.
Subject to Section 8.31(i), the Special Servicer shall accept the highest cash
bid received from any Person that constitutes a fair price for such Mortgage
Loan. In the absence of any bid determined as provided below to be fair, the
Special Servicer shall proceed with respect to such Defaulted Mortgage Loan in
accordance with Section 8.7.
(c) The Special Servicer shall use its reasonable efforts to solicit offers
for each REO Property in such manner as will be reasonably likely to realize a
fair price within the time period provided for by Section 8.19(a). Subject to
Section 8.31(i), the Special Servicer shall accept the first (and, if multiple
bids are received contemporaneously, highest) cash bid received from any Person
that constitutes a fair price for such REO Property. If the Special Servicer
reasonably believes that it will be unable to realize a fair price for any REO
Property within the time constraints imposed by Section 8.19(a), the Special
Servicer shall dispose of such REO Property upon such terms and conditions as
the Special Servicer shall deem necessary and desirable to maximize the recovery
thereon under the circumstances and in connection therewith, shall accept the
highest outstanding cash bid, regardless of from whom received; provided that
neither the Special Servicer nor any Affiliate thereof may purchase such REO
Property for less than a fair price determined in accordance with Section
8.31(f).
(d) The Special Servicer shall give the Trustee, the Operating Adviser and
the Master Servicer not less than five Business Days' prior written notice of
its intention to sell any Defaulted Mortgage Loan or REO Property pursuant to
this Section 8.31. No Interested Person shall be obligated to submit a bid to
purchase any such Mortgage Loan or REO Property, and notwithstanding anything to
the contrary herein, neither the Trustee, in its individual capacity, nor any of
its Affiliates may bid for or purchase any Defaulted Mortgage Loan or REO
Property pursuant hereto. Whether any bid for any Defaulted Mortgage Loan or REO
Property constitutes a fair price shall be determined by the Special Servicer,
if the highest bidder is other than an Interested Person, and by the Trustee, if
the highest bidder is an Interested Person; provided, however, that no bid from
an Interested Person for less than the applicable Purchase Price shall
constitute a fair price unless (i) it is the highest bid received and (ii) at
least two other bids are received from Independent third parties.
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(e) The proceeds of any sale of a Defaulted Mortgage Loan or an REO
Property (after deduction of the expenses of such sale incurred in connection
therewith) shall be deposited within one Business Day in the Collection Account.
(f) In determining whether any bid received from an Interested Person,
including without limitation the Special Servicer or any Affiliate thereof,
represents a fair price for any Defaulted Mortgage Loan or any REO Property, the
Trustee shall be supplied with and shall rely on the most recent Appraisal or
updated Appraisal conducted in accordance with this Agreement within the
preceding 12-month period or, in the absence of any such Appraisal, on a
narrative appraisal prepared by a Qualified Appraiser, retained by the Special
Servicer. Such appraiser shall be selected by the Special Servicer if the
Special Servicer is not making an offer with respect to a Defaulted Mortgage
Loan or REO Property and shall be selected by the Master Servicer (or, if the
Master Servicer and the Special Servicer are the same Person or are Affiliates,
by the Trustee) if the Special Servicer is making such an offer. The cost of any
such narrative appraisal shall be covered by, and shall be reimbursable as, a
Servicing Advance. In determining whether any offer from a Person other than an
Interested Person constitutes a fair price for any such Mortgage Loan or REO
Property, the Special Servicer shall take into account (in addition to the
results of any Appraisal, updated Appraisal or narrative Appraisal that it may
have obtained pursuant to this Agreement within the prior 12 months), and in
determining whether any offer from an Interested Person constitutes a fair price
for any such Mortgage Loan or REO Property, any appraiser shall be instructed to
take into account, as applicable, among other factors, the period and amount of
any delinquency on the affected Defaulted Mortgage Loan, the occupancy level and
physical condition of the Mortgaged Property or REO Property, the state of the
local economy and the obligation to dispose of any REO Property within the time
period specified in Section 8.19(a). The Purchase Price for any Defaulted
Mortgage Loan or REO Property shall in all cases be deemed a fair price.
(g) Subject to the REMIC Provisions, the Special Servicer shall act on
behalf of the Trust in negotiating and taking any other action necessary or
appropriate in connection with the sale of any Defaulted Mortgage Loan or REO
Property, including the collection of all amounts payable in connection
therewith. Any sale of a Defaulted Mortgage Loan or REO Property shall be
without recourse to the Trustee, the Depositor, the Special Servicer, the Master
Servicer, or the Trust (except such recourse imposed by those representations
and warranties typically given in such transactions, any prorations applied
thereto and any customary closing matters). None of the Special Servicer, the
Master Servicer, the Depositor, the Fiscal Agent or the Trustee shall have any
liability to the Trust or any Certificateholder with respect to the price at
which a Defaulted Mortgage Loan or REO Property is sold if the sale is
consummated in accordance with the terms of this Agreement.
(h) Any sale of a Defaulted Mortgage Loan or any REO Property shall be for
cash only.
(i) Notwithstanding any of the foregoing paragraphs of this Section 8.31,
the Special Servicer shall not be obligated to accept the highest cash offer if
the Special Servicer determines, in its reasonable and good faith judgment, that
rejection of such offer would be in the best interests of the
Certificateholders, and the Special Servicer may accept a lower cash offer
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(from any Person other than an Interested Person bidding lower than the
applicable Purchase Price) if it determines, in its reasonable and good faith
judgment, that acceptance of such offer would be in the best interests of the
Certificateholders (for example, if the prospective buyer making the lower offer
is more likely to perform its obligations or the terms, other than the amount of
the purchase price, offered by the prospective buyer making the lower offer are
more favorable).
Section 8.32 Operating Adviser; Elections.
(a) In accordance with Section 8.32(c), the Holders of Certificates
representing more than 50% of the Class Principal Balance of the then
Controlling Class shall be entitled to elect an operating adviser (the
"Operating Adviser") with the powers set forth in Section 8.33. An election of
an Operating Adviser may also be held upon the resignation or removal of any
Person acting as Operating Adviser. The initial election of an Operating Adviser
may be held at any time on or after the Closing Date.
(b) At the request of the Holders of Certificates representing at least 50%
of the Class Principal Balance of the then Controlling Class, the Trustee shall
call a meeting of the Holders of the Controlling Class for purpose of electing
an Operating Adviser. Notice of the meeting shall be mailed or delivered by the
Trustee to each Holder of Certificates of the Controlling Class not less than 10
nor more than 60 days prior to the meeting. The notice shall state the place and
the time of the meeting, which may be held by telephone. Holders of Certificates
representing a majority of the Class Principal Balance of the then Controlling
Class, present in person or represented by proxy, shall constitute a quorum for
the nomination of an Operating Adviser. At the meeting, each Holder shall be
entitled to nominate one Person to act as Operating Adviser. The Trustee shall
cause the election of the Operating Adviser to be held as soon thereafter as is
reasonably practicable.
(c) Each Holder of Certificates of the Controlling Class shall be entitled
to vote in each election of the Operating Adviser. The voting in each election
of the Operating Adviser shall be in writing mailed, telecopied, delivered or
sent by courier and actually received by the Trustee on or prior to the date of
such election. Immediately upon receipt by the Trustee of votes (which have not
been rescinded) from the Holders of Certificates representing more than 50% of
the Class Principal Balance of the then Controlling Class which are cast for a
single Person, such Person shall be, upon such Person's acceptance, the
Operating Adviser. The Trustee shall act as judge of each election and, absent
manifest error, the determination of the results of any election by the Trustee
shall be conclusive. Notwithstanding any other provisions of this Section 8.32,
the Trustee may make such reasonable regulations as it may deem advisable for
any election.
(d) The Operating Adviser may be removed at any time by the written vote,
copies of which must be delivered to the Trustee, of the Holders of the
Certificates representing more than 50% of the Class Principal Balance of the
then Controlling Class.
(e) For purposes of electing or removing an Operating Adviser, Certificates
of the Controlling Class held by the Depositor, the Master Servicer or the
Special Servicer or by any Affiliate of any of them shall be taken into account
with the same force and effect as if any other
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Person held such Certificates.
Section 8.33 Duties of Operating Adviser.
(a) If an Operating Adviser has been elected and is currently acting in
such capacity, then, prior to the Special Servicer's taking any of the following
actions, the Special Servicer shall notify such Operating Adviser of its
intention to take such action:
(i) any foreclosure upon or comparable conversion (which may include
acquisition of an REO Property) of the ownership of properties securing
such of the Specially Serviced Mortgage Loans as come into and continue in
default;
(ii) any modification of a Money Term of a Mortgage Loan (other than a
modification consisting of the extension of the original Maturity Date of
such Mortgage Loan for two years or less);
(iii) any sale of a Defaulted Mortgage Loan or REO Property pursuant
to Section 8.31;
(iv) any determination to bring a Mortgaged Property or an REO
Property into compliance with Environmental Laws; and
(v) any acceptance of substitute or additional collateral for a
Mortgage Loan.
(b) The Operating Adviser, if any, may direct the Trustee to remove the
Special Servicer at any time effective upon the appointment and written
acceptance of such appointment by a successor to the Special Servicer appointed
by the Operating Adviser; provided that, prior to the effectiveness of any such
appointment the Operating Adviser and the Trustee shall have received: (i)
Rating Agency Confirmation from each of DCR and Moody's; and (ii) an Opinion of
Counsel (which shall not be an expense of the Trustee or Trust) to the effect
that the designation of such successor to serve as Special Servicer is in
compliance with this Section 8.33(b) and all other applicable provisions of this
Agreement, that upon the execution and delivery of the written acceptance
referred to above, the designated successor shall be bound by the terms of this
Agreement and that this Agreement shall be enforceable against the designated
successor in accordance with its terms. The existing Special Servicer shall be
deemed to have resigned simultaneously with such designated successor's becoming
the Special Servicer hereunder; provided, however, that (i) the resigning
Special Servicer shall continue to be entitled to receive all amounts accrued or
owing to it under this Agreement on or prior to the effective date of such
resignation, whether in respect of Servicing Advances or otherwise, and (ii) it
and its directors, officers, employees and agents shall continue to be entitled
to the benefits of Sections 8.26 and 8.27, notwithstanding any such resignation.
Such resigning Special Servicer shall cooperate with the Trustee and the
replacement Special Servicer in effecting the termination of the resigning
Special Servicer's responsibilities and rights hereunder, including, without
limitation, the transfer within two Business Days to the replacement Special
Servicer for administration by it of all cash amounts that shall at the time be
or should have been deposited in the Collection Account or
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delivered by the Special Servicer to the Master Servicer or that are thereafter
received with respect to Specially Serviced Mortgage Loans and REO Properties.
Section 8.34 Exchange Act Reporting. The Master Servicer, the Special
Servicer, the Trustee and the Fiscal Agent shall reasonably cooperate with the
Depositor in connection with the Depositor's satisfying the reporting
requirements in respect of the Trust under the Exchange Act. The Depositor shall
seek from the Securities and Exchange Commission a no-action letter or other
exemptive relief relating to reduced reporting requirements in respect of the
Trust under the Exchange Act and shall, in accordance with and to the extent
permitted by applicable law, file a Form 15 relating to the automatic
termination of reporting in respect of the Trust under the Exchange Act.
ARTICLE IX
DEFAULT
Section 9.1 Events of Default.
(a) "Event of Default", wherever used herein, means any one of the
following events:
(i) (A) any failure by the Master Servicer to make a required deposit
to the Collection Account which continues unremedied for one Business Day
following the date on which such deposit was first required to be made, or
(B) any failure by the Master Servicer to deposit into, or to remit to the
Trustee for deposit into, the Distribution Account any amount required to
be so deposited or remitted, which failure is not remedied by 11:00 a.m.
(New York City time) on the relevant Distribution Date; or
(ii) any failure by the Special Servicer to deposit into, or to remit
to the Master Servicer for deposit into, the Collection Account any amount
required to be so deposited or remitted under this Agreement which failure
continues unremedied for one Business Day following the date on which such
deposit or remittance was first required to be made; or
(iii) any failure by the Master Servicer or the Special Servicer to
timely make any Servicing Advance required to be made by it pursuant to
this Agreement which continues unremedied for a period ending on the
earlier of (A) 15 days following the date such Servicing Advance was first
required to be made, and (B) either, if applicable, (1) in the case of a
Servicing Advance relating to the payment of insurance premiums, the day on
which such insurance coverage terminates if such premiums are not paid or
(2) in the case of a Servicing Advance relating to the payment of real
estate taxes, the date of the commencement of a foreclosure action with
respect to the failure to make such payment; or
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(iv) any failure on the part of the Master Servicer or the Special
Servicer duly to observe or perform in any material respect any other of
the covenants or agreements on the part of the Master Servicer or the
Special Servicer contained in this Agreement which continues unremedied for
a period of 30 days after the date on which written notice of such failure,
requiring the same to be remedied, shall have been given to the Master
Servicer or the Special Servicer, as the case may be, by the Trustee or the
Depositor, or to the Master Servicer or the Special Servicer, as the case
may be, the Depositor and the Trustee by the Holders of Certificates
entitled to not less than 25% of the Voting Rights; or
(v) any breach on the part of the Master Servicer or the Special
Servicer of any representation or warranty contained in this Agreement
which materially and adversely affects the interests of any Class of
Certificateholders and which continues unremedied for a period of 30 days
after the date on which notice of such breach, requiring the same to be
remedied, shall have been given to the Master Servicer or the Special
Servicer by the Trustee or the Depositor, or to the Master Servicer or the
Special Servicer, as the case may be, the Depositor and the Trustee by the
Holders of Certificates entitled to not less than 25% of the Voting Rights;
or
(vi) a decree or order of a court or agency or supervisory authority
having jurisdiction in the premises in an involuntary case under any
present or future federal or state bankruptcy, insolvency or similar law
for the appointment of a conservator, receiver, liquidator, trustee or
similar official in any bankruptcy, insolvency, readjustment of debt,
marshaling of assets and liabilities or similar proceedings, or for the
winding-up or liquidation of its affairs, shall have been entered against
the Master Servicer or the Special Servicer and such decree or order shall
have remained in force undischarged or unstayed for a period of 60 days; or
(vii) the Master Servicer or the Special Servicer shall consent to the
appointment of a conservator, receiver, liquidator, trustee or similar
official in any bankruptcy, insolvency, readjustment of debt, marshaling of
assets and liabilities or similar proceedings of or relating to it or of or
relating to all or substantially all of its property;
(viii) the Master Servicer or 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 bankruptcy, insolvency or
reorganization statute, make an assignment for the benefit of its
creditors, voluntarily suspend payment of its obligations, or take any
corporate action in furtherance of the foregoing; or
(ix) the Trustee shall have received written notice from either Rating
Agency that the continuation of the Master Servicer or the Special Servicer
in such capacity would result in the downgrade, qualification or withdrawal
of any rating then assigned by such Rating Agency to any Class of
Certificates.
(b) If any Event of Default with respect to the Master Servicer or the
Special
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Servicer (in either case for purposes of this Section 7.01(b), the "Defaulting
Party") shall occur and be continuing, then, and in each and every such case, so
long as such Event of Default shall not have been remedied, the Depositor or the
Trustee may terminate, and at the written direction of the Holders of
Certificates entitled to at least 51% of the Voting Rights, the Trustee shall
terminate, by notice in writing to the Defaulting Party, with a copy of such
notice to the Depositor (if the termination is effected by the Trustee) or to
the Trustee (if the termination is effected by the Depositor), all of the rights
and obligations of the Defaulting Party under this Agreement and in and to the
Mortgage Loans and the proceeds thereof (other than any rights of the Defaulting
Party as Certificateholder). From and after the receipt by the Defaulting Party
of such written notice, all authority and power of the Defaulting Party under
this Agreement, whether with respect to the Certificates (other than as a Holder
of any Certificate) or the Mortgage Loans or otherwise, shall pass to and be
vested in the Trustee pursuant to and under this Section, and, without
limitation, the Trustee is hereby authorized and empowered to execute and
deliver, on behalf of and at the expense of the Defaulting Party, as
attorney-in-fact or otherwise, any and all documents and other instruments, and
to do or accomplish all other acts or things necessary or appropriate to effect
the purposes of such notice of termination, whether to complete the transfer and
endorsement or assignment of the Mortgage Loans and related documents, or
otherwise. The Master Servicer and the Special Servicer each agrees that if it
is terminated pursuant to this Section 9.1(b), it shall promptly (and in any
event no later than ten Business Days subsequent to its receipt of the notice of
termination) provide the Trustee with all documents and records requested by the
Trustee to enable it or a successor servicer to assume the Master Servicer's or
Special Servicer's, as the case may be, functions hereunder, and shall cooperate
with the Trustee in effecting the termination of the Master Servicer's or
Special Servicer's, as the case may be, responsibilities and rights hereunder,
including, without limitation, the transfer within two Business Days to the
Trustee or a successor servicer 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, as the case may be, to the Collection Account, the
Distribution Account or any Servicing Account or thereafter be received with
respect to the Mortgage Loans or any REO Property (provided, however, that the
Master Servicer and the Special Servicer each shall continue to be entitled to
receive all amounts accrued or owing to it under this Agreement on or prior to
the date of such termination, whether in respect of Advances made by it or
otherwise, and it and its directors, officers, employees and agents shall
continue to be entitled to the benefits of Sections 8.26 and 8.27
notwithstanding any such termination).
Section 9.2 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 9.1, the Trustee shall be the
successor in all respects to the Master Servicer or the Special Servicer, as the
case may be, in its capacity as such under this Agreement and the transactions
set forth or provided for herein and shall be subject to all the
responsibilities, duties and liabilities relating thereto and arising thereafter
placed on the Master Servicer or the Special Servicer, as the case may be, by
the terms and provisions hereof, including, without limitation, the Master
Servicer's obligation to make P&I Advances; provided that any failure to perform
such duties or responsibilities caused by the Master Servicer's or the Special
Servicer's failure to provide information or monies required by Section 9.1
shall not be considered a default by the Trustee hereunder. The Trustee shall
not be liable for any of the
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representations and warranties of the Master Servicer or the Special Servicer
nor shall the Trustee be required to purchase any Mortgage Loan hereunder. As
compensation therefor, the Trustee shall be entitled to the applicable Servicing
Fees and all funds relating to the Mortgage Loans which the Master Servicer or
the Special Servicer would have been entitled to charge to the Collection
Account if the Master Servicer or the Special Servicer had continued to act
hereunder. 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 51% of the Voting Rights so request in writing to the
Trustee or if it is not appropriately rated as a master servicer or special
servicer, as the case may be, by each Rating Agency, promptly appoint a mortgage
loan servicing institution that has a net worth of not less than $15,000,000 and
is otherwise acceptable to each Rating Agency (as evidenced by written
confirmation therefrom to the effect that the appointment of such institution
would not result in the downgrade, qualification or withdrawal of any of its
ratings then assigned to the Certificates), as the successor to the Master
Servicer or the Special Servicer, as the case may be, hereunder in the
assumption of all or any part of the responsibilities, duties or liabilities of
the Master Servicer or the Special Servicer, as the case may be, hereunder. No
appointment of a successor to the Master Servicer or the Special Servicer, as
the case may be, hereunder shall be effective until the assumption by the
successor to the Master Servicer or the Special Servicer, as the case may be, of
all the responsibilities, duties and liabilities of the Master Servicer or the
Special Servicer, as the case may be, hereunder. Pending appointment of a
successor to the Master Servicer or the Special Servicer, as the case may be,
hereunder, the Trustee shall act in such capacity as hereinabove provided and
shall be entitled to such compensation as would otherwise have been payable to
the Master Servicer or the Special Servicer, as the case may be. In connection
with any such appointment and assumption described herein, the Trustee may make
such arrangements for the compensation of such successor out of payments on
Mortgage Loans or otherwise as it and such successor shall agree; provided,
however, that no such compensation shall be in excess of that permitted the
resigning or terminated party hereunder. The Depositor, the Trustee and such
successor shall take such action, consistent with this Agreement, as shall be
necessary to effectuate any such succession.
Section 9.3 Notification to Certificateholders.
(a) Upon any resignation of the Master Servicer or the Special Servicer
pursuant to Section 8.24, any termination of the Master Servicer or the Special
Servicer pursuant to Section 9.1 or any appointment of a successor to the Master
Servicer or the Special Servicer pursuant to Section 9.2, the Trustee shall give
prompt written notice thereof to Certificateholders at their respective
addresses appearing in the Certificate Register.
(b) Not later than the later of (i) 60 days after the occurrence of any
event which constitutes or, with notice or lapse of time or both, would
constitute an Event of Default and (ii) five days after the Trustee discovers or
is notified of the occurrence of such an event, the Trustee shall transmit by
mail to the Depositor and all Certificateholders notice of such occurrence,
unless such default shall have been cured.
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Section 9.4 Waiver of Events of Default.
The Holders of Certificates entitled to at least 662/3% of the Voting
Rights allocated to the respective Classes of Certificates affected by any Event
of Default hereunder may waive such Event of Default; provided, however, that an
Event of Default under clause (i) or (ii) of Section 9.1 may be waived only by
all of the Certificateholders. Upon any such waiver of an Event of Default, such
Event of Default shall cease to exist and shall be deemed to have been remedied
for every purpose hereunder; provided, however, that the Trustee shall be
entitled to reimbursement pursuant to Section 7.12 for any costs and expenses
incurred as a result of such Event of Default. No such waiver shall extend to
any subsequent or other Event of Default or impair any right consequent thereon
except to the extent expressly so waived. Notwithstanding any other provisions
of this Agreement, for purposes of waiving any Event of Default pursuant to this
Section 9.4, Certificates registered in the name of the Depositor or any
Affiliate of the Depositor shall be entitled to the same Voting Rights with
respect to the matters described above as they would if any other Person held
such Certificates.
ARTICLE X
PURCHASE AND
TERMINATION OF THE TRUST
Section 10.1 Termination of Trust.
(a) The Trust and the respective obligations and responsibilities of the
Depositor, the Trustee, the Master Servicer, the Special Servicer and the Fiscal
Agent hereunder (other than the obligation of the Trustee to make payments to
Certificateholders on the final Distribution Date pursuant to Section 6.4 or
otherwise as set forth in Section 10.2 and other than the obligations in the
nature of information or tax reporting or tax-related administrative or judicial
contests or proceedings) shall terminate on the earlier of (i) the later of (A)
the final payment or other liquidation of the last Mortgage Loan held by the
Trust and (B) the disposition of the last REO Property held by the Trust and
(ii) the sale of all Mortgage Loans and any REO Properties held by the Trust in
accordance with Section 10.1(b); provided that in no event shall the Trust
created hereby continue beyond the expiration of 21 years from the death of the
last survivor of the descendants of Joseph P. Kennedy, the late Ambassador of
the United States to the Court of St. James, living on the date hereof.
(b) As soon as reasonably practical, the Trustee shall give the Depositor,
the Master Servicer, the Special Servicer and the Class R-I Certificateholders
notice of the date when the aggregate Certificate Principal Balance of the
Principal Balances Certificates, after giving effect to distributions of
principal made on the next Distribution Date, will be less than or equal to 3%
of the Initial Pool Balance. The Depositor, the Master Servicer, the Special
Servicer and the Holders of Class R-I Certificates representing a majority
Percentage Interest in such Class shall thereafter be entitled, in that order of
priority, to purchase, in whole only, the Mortgage Loans and any REO Properties
then remaining in the Trust Fund. If any such party desires to exercise such
option, it will notify the Trustee who will notify any other such party with a
prior right to
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exercise such option. If any such party that has been so provided notice by the
Trustee notifies the Trustee within ten Business Days after receiving notice of
the proposed purchase that it wishes to purchase the assets of the Trust, then
such party (or, in the event that more than one of such parties notifies the
Trustee that it wishes to purchase the assets of the Trust, the party with the
first right to purchase the assets of the Trust) may purchase the assets of the
Trust in accordance with this Agreement. The "Termination Price" shall equal (i)
the aggregate Purchase Price of all the remaining Mortgage Loans (other than REO
Mortgage Loans and Mortgage Loans as to which a Final Recovery Determination has
been made) held by the Trust, plus (ii) the appraised value of each remaining
REO Property, if any, held by the Trust (such appraisal to be conducted by an
Independent MAI-designated appraiser selected by the Master Servicer and
approved by the Trustee), minus (iii) solely in the case where the Master
Servicer is effecting such purchase, the aggregate amount of unreimbursed
Advances made by the Master Servicer, together with any Advance Interest accrued
and payable to the Master Servicer in respect of such Advances and any unpaid
Master Servicing Fees remaining outstanding (which items shall be deemed to have
been paid or reimbursed to the Master Servicer in connection with such
purchase).
In the event that the Depositor, the Master Servicer, the Special Servicer
or the Holders of Class R-I Certificates representing a majority Percentage
Interest in such Class purchase all of the remaining Mortgage Loans and REO
Properties held by the Trust in accordance with the preceding paragraph, the
party effecting such purchase (the "Final Purchaser") shall deposit in the
Collection Account not later than the Determination Date relating to the
Distribution Date on which the final distribution on the Certificates is to
occur, an amount in immediately available funds equal to the Termination Price.
Upon confirmation that such deposit has been made, the Trustee shall release or
cause to be released to the Final Purchaser or its designee the Mortgage Files
for the remaining Mortgage Loans and shall execute all assignments, endorsements
and other instruments furnished to it by the Final Purchaser as shall be
necessary to effectuate transfer of the remaining Mortgage Loans and REO
Properties held by the Trust, in each case without representation or warranty by
the Trustee. All Servicing Files for the remaining Mortgage Loans and REO
Properties shall be delivered to the Final Purchaser or its designee.
(c) As a condition to the purchase of the assets of the Trust pursuant to
Section 10.1(b), the Final Purchaser must deliver to the Trustee an Opinion of
Counsel, which shall be at the expense of the Final Purchaser, stating that such
termination will be a "qualified liquidation" under section 860F(a)(4) of the
Code. Such purchase shall be made in accordance with Section 10.3.
Section 10.2 Procedure Upon Termination of Trust.
(a) Notice of any termination pursuant to the provisions of Section 10.1,
specifying the Distribution Date upon which the final distribution shall be
made, shall be given promptly by the Trustee to each Rating Agency and each
Certificateholder by first class mail no later than ten days prior to the date
of such termination. Such notice shall specify (A) the Distribution Date upon
which final distribution on the Certificates will be made and (B) that the
Record Date otherwise applicable to such Distribution Date is not applicable,
distribution being made only upon presentation and surrender of the Certificates
at the office or agency of the Trustee therein specified. The Trustee shall give
such notice to the Depositor and the Certificate
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Registrar at the time such notice is given to Certificateholders. Upon any such
termination, the Trustee shall terminate, or request the Master Servicer to
terminate, the Collection Account and the Distribution Account and any other
account or fund maintained with respect to the Certificates, subject to the
Trustee's obligation hereunder to hold all amounts payable to the nontendering
Certificateholders in trust without interest pending such payment.
(b) On the final Distribution Date, the Trustee shall distribute to each
Certificateholder that presents and surrenders its Certificates all amounts
payable on such Certificates on such final Distribution Date in accordance with
Section 6.4.
(c) In the event that all of the Holders do not surrender their
Certificates for cancellation within three months after the time specified in
the above-mentioned written notice, the Trustee shall give a second written
notice to the remaining Certificateholders to surrender their Certificates for
cancellation and receive the final distribution with respect thereto. If within
one year after the second notice any Certificates shall not have been
surrendered for cancellation, the Trustee may take appropriate steps to contact
the nontendering Certificateholders concerning surrender of their Certificates,
and the cost thereof shall be paid out of the amounts distributable to such
Holders. If within two years after the second notice any such Certificates shall
not have been surrendered for cancellation, the Trustee shall, subject to
applicable state law relating to escheatment, hold all amounts distributable to
such Holders for the benefit of such Holders. No interest shall accrue on any
amount held by the Trustee and not distributed to a Certificateholder due to
such Certificateholder's failure to surrender its Certificate(s) for payment of
the final distribution thereon in accordance with this Section. Any money held
by the Trustee pending distribution under this Section 10.2 after 90 days after
the adoption of a plan of complete liquidation shall be deemed for tax purposes
to have been distributed from the REMICs and shall be beneficially owned by the
related Holder.
Section 10.3 Additional Trust Termination Requirements.
(a) In the event of a purchase of all the remaining Mortgage Loans and REO
Properties held by the Trust in accordance with Section 10.1, the Trust and each
REMIC Pool shall be terminated in accordance with the following additional
requirements, unless the Final Purchaser delivers to the Trustee an Opinion of
Counsel (at the expense of the Final Purchaser) addressed to the Depositor and
the Trustee to the effect that the failure of the Trust to comply with the
requirements of this Section 10.3 will not (i) result in the imposition of taxes
on "prohibited transactions" of any REMIC Pool under the REMIC Provisions or
(ii) cause any REMIC Pool to fail to qualify as a REMIC at any time that any
Certificates are outstanding:
(i) the Trustee shall specify the first day in the 90-day liquidation
period in a statement attached to the final Tax Return for each REMIC Pool
pursuant to Treasury regulation 1.860F-1 and shall adopt a plan of complete
liquidation prepared by the Final Purchaser and meeting the requirements
for a qualified liquidation under Section 860F of the Code of any
regulations thereunder;
(ii) during such 90-day liquidation period and at or prior to the time
of making of the final payment on the Certificates, the Trustee shall sell
all of the remaining
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Mortgage Loans and any REO Properties held by the Trust to the Final
Purchaser for cash in an amount equal to the Termination Price; and
(iii) immediately following the making of the final payment on the
Certificates, the Trustee shall distribute or credit, or cause to be
distributed or credited, to the Holders of the related Class of Residual
Certificates all cash on hand in each REMIC Pool (other than cash retained
to meet claims), and REMIC I, REMIC II and REMIC III shall terminate at
that time.
(b) By their acceptance of Certificates, the Holders thereof hereby agree
to authorize the Trustee to adopt a plan of complete liquidation of REMIC I,
REMIC II and REMIC III, which authorization shall be binding upon all successor
Certificateholders.
ARTICLE XI
RIGHTS OF CERTIFICATEHOLDERS
Section 11.1 Limitation on Rights of Holders.
(a) The death or incapacity of any Certificateholder shall not operate to
terminate this Agreement or the Trust, nor entitle such Certificateholder's
legal representatives or heirs to claim an accounting or take any action or
proceeding in any court for a partition or winding up of the Trust, nor
otherwise affect the rights, obligations and liabilities of the parties hereto
or any of them.
(b) Except as otherwise expressly provided herein, no Certificateholder,
solely by virtue of its status as a Certificateholder, shall have any right to
vote or in any manner otherwise control the Master Servicer, the Special
Servicer or the operation and management of the Trust, 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.
(c) No Certificateholder, solely by virtue of its status as
Certificateholder, shall have any right by virtue or by availing of any
provision of this Agreement to institute any suit, action or proceeding in
equity or at law upon or under or with respect to this Agreement unless the
Holders of Certificates entitled to not less than 25% of the Voting Rights shall
have made written request upon the Trustee to institute such action, suit or
proceeding in its own name as Trustee hereunder and shall have offered to the
Trustee such reasonable indemnity as it may require against the cost, expenses
and liabilities to be incurred therein or thereby, and the Trustee, for sixty
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 and
no direction inconsistent with such written request has been given the Trustee
during such sixty-day period by such Certificateholders; it being understood and
intended, and being expressly covenanted by each Certificateholder with
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every other Certificateholder and the Trustee, that no one or more Holders of
Certificates shall have any right in any manner whatsoever by virtue or by
availing 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
benefit of all Certificateholders. 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 11.2 Access to List of Holders.
(a) If the Trustee is not acting as Certificate Registrar, the Certificate
Registrar will furnish or cause to be furnished to the Trustee, within fifteen
days after receipt by the Certificate Registrar of a request by the Trustee in
writing, a list, in such form as the Trustee may reasonably require, of the
names and addresses of the Certificateholders of each Class as of the most
recent Record Date.
(b) If the Depositor, the Operating Adviser, the Special Servicer, the
Master Servicer or three or more Holders (hereinafter referred to as
"applicants," with a single Person which (together with its Affiliates) is the
Holder of more than one Class of Certificates being viewed as a single
"applicant" for these purposes) apply in writing to the Trustee, and such
application states that the applicants desire to communicate with other Holders
with respect to their rights under this Agreement or under the Certificates and
is accompanied by a copy of the communication which such applicants propose to
transmit, then the Trustee shall, within five Business Days after the receipt of
such application, send, at such Person's expense, the written communication
proffered by the applicants to all Certificateholders at their addresses as they
appear in the Certificate Register. The Depositor, the Master Servicer and the
Special Servicer may each obtain, upon request, from the Trustee and the
Certificate Registrar a copy of the Certificate Register.
(c) Every Holder, by receiving and holding a Certificate, agrees with the
Depositor, the Certificate Registrar and the Trustee that neither the Depositor,
the Certificate Registrar nor the Trustee shall be held accountable by reason of
the disclosure of any such information as to the names and addresses of the
Certificateholders hereunder, regardless of the source from which such
information was derived.
Section 11.3 Acts of Holders of Certificates.
(a) Any request, demand, authorization, direction, notice, consent, waiver
or other action provided by this Agreement to be given or taken by Holders may
be embodied in and evidenced by one or more instruments of substantially similar
tenor signed by such Holders 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,
where it is hereby expressly required, to the Depositor. Such instrument or
instruments (as the action embodies therein and evidenced thereby) are herein
sometimes referred to as an "Act" of the Holders signing such instrument or
instruments. Proof of execution of any
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such instrument or of a writing appointing any such agents shall be sufficient
for any purpose of this Agreement and conclusive in favor of the Trustee and the
Depositor, if made in the manner provided in this Section. The Trustee agrees to
promptly notify the Depositor of any such instrument or instruments received by
it, and to promptly forward copies of the same.
(b) The fact and date of the execution by any Person of any such instrument
or writing may be proved by the affidavit of a witness of such execution or by
the certificate of any notary public or other officer authorized by law to take
acknowledgments or deeds, certifying that the individual signing such instrument
or writing acknowledged to such notary public or other officer the execution
thereof. Whenever such execution is by an officer of a corporation or a member
of a partnership on behalf of such corporation or partnership, such certificate
or affidavit shall also constitute sufficient proof of such officer's or
member's authority. The fact and date of the execution of any such instrument or
writing, or the authority of the individual executing the same, may also be
proved in any other manner which the Trustee deems sufficient.
(c) The ownership of Certificates (notwithstanding any notation of
ownership or other writing thereon made by anyone other than the Trustee) shall
be proved by the Certificate Register, and neither the Trustee nor the Depositor
shall be affected by any notice to the contrary.
(d) Any request, demand, authorization, direction, notice, consent, waiver
or other action by the Holder of any Certificate shall bind every future Holder
of the same Certificate and the Holder of every Certificate issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof, in
respect of anything done, omitted or suffered to be done by the Trustee or the
Depositor in reliance thereon, whether or not notation of such action is made
upon such Certificate.
ARTICLE XII
REMIC ADMINISTRATION
The provisions of this Article XII shall apply to each REMIC Pool.
Section 12.1 REMIC Administration.
(a) An election will be made by the Trustee to treat the segregated pool of
assets consisting of the Mortgage Loans, such amounts as shall from time to time
be held in the Collection Account and the Distribution Account, the Insurance
Policies and any REO Properties as a REMIC under the Code. Such election will be
made on Form 1066 or other appropriate federal tax or information return or any
appropriate state return for the taxable year ending on the last day of the
calendar year in which the REMIC I Interests are issued. For purposes of such
election, the REMIC I Regular Interests shall each be designated as a separate
class of "regular interests" in REMIC I and the Class R-I Certificates shall be
designated as the sole class of "residual interests" in REMIC I.
An election will be made by the Trustee to treat the segregated pool of
assets
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consisting of the REMIC I Regular Interests as a REMIC under the Code. Such
election will be made on Form 1066 or other appropriate federal tax or
information return or any appropriate state return for the taxable year ending
on the last day of the calendar year in which the REMIC II Interests are issued.
For the purposes of such election, the REMIC II Regular Interests shall be
designated as the "regular interests" in REMIC II and the Class R-II
Certificates shall be designated as the sole class of "residual interests" in
REMIC II.
An election will be made by the Trustee to treat the segregated pool of
assets consisting of the REMIC II Regular Interests as a REMIC under the Code.
Such election will be made on Form 1066 or other appropriate federal tax or
information return or any appropriate state return for the taxable year ending
on the last day of the calendar year in which the REMIC III Certificates are
issued. For purposes of such election, the Class A-1A, Class A-1B, Class A-1C,
Class A-2, Class IO-1, Class IO-2, Class B, Class C, Class D, Class E, Class F,
Class G, Class H and Class J Certificates shall be designated as the "regular
interests" in REMIC III and the Class R-III Certificates shall be designated as
the sole class of "residual interests" in REMIC III.
The Trustee shall not permit the creation of any "interests" (within the
meaning of Section 860G of the Code) in any of the REMIC Pools other than the
REMIC I Regular Interests, the REMIC II Regular Interests and the interests
evidenced by the Certificates.
(b) The Closing Date is hereby designated as the "Startup Day" of each
REMIC Pool within the meaning of Section 860G(a)(9) of the Code.
(c) The Trustee shall pay all routine tax related expenses (not including
any taxes, however denominated, including any additions to tax, penalties and
interest) of each REMIC Pool, excluding any professional fees or extraordinary
expenses related to audits or any administrative or judicial proceedings with
respect to each REMIC Pool that involve the Internal Revenue Service or state
tax authorities.
(d) The Trustee shall cause to be prepared, signed, and timely filed with
the Internal Revenue Service, on behalf of each REMIC Pool, an application for a
taxpayer identification number for such REMIC Pool on Internal Revenue Service
Form SS-4. The Trustee, upon receipt from the Internal Revenue Service of the
Notice of Taxpayer Identification Number Assigned, shall promptly forward a copy
of such notice to the Depositor and the Master Servicer. The Trustee shall
prepare and file Form 8811 on behalf of each REMIC Pool and shall designate an
appropriate Person to respond to inquiries by or on behalf of Certificateholders
for original issue discount and related information in accordance with
applicable provisions of the Code.
(e) The Trustee shall prepare, execute and file all of each REMIC Pool's
federal and state income or franchise tax and information returns as such REMIC
Pool's direct representative; the expenses of preparing and filing such returns
shall be borne by the Trustee. The Depositor, the Master Servicer and the
Special Servicer shall each provide on a timely basis to the Trustee or its
designee such information with respect to the Trust or any REMIC Pool as is in
the Depositor's, the Master Servicer's or the Special Servicer's, as the case
may be, possession, which the Depositor, the Master Servicer or the Special
Servicer, as the case may be,
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has received or prepared by virtue of its acting in such capacity hereunder and
which is reasonably requested by the Trustee to enable it to perform its
obligations under this subsection, and the Trustee shall be entitled to
conclusively rely on such information in the performance of its obligations
hereunder. The Depositor shall indemnify the Trust, the Trustee and the Fiscal
Agent for any liability or assessment against either of them or any cost or
expense (including attorneys' fees) incurred by either of them resulting from
any error resulting from bad faith, negligence, or willful malfeasance of the
Depositor in providing any information for which the Depositor is responsible
for preparing. The Master Servicer and the Special Servicer shall each indemnify
the Trust, the Trustee, the Fiscal Agent and the Depositor for any liability or
assessment against the Trust, the Trustee or the Depositor, as the case may be,
and any expenses incurred in connection with such liability or assessment
(including attorney's fees) resulting from any error in any of such tax or
information returns resulting from errors in the information provided by the
Master Servicer or the Special Servicer, as the case may be, caused by the
negligence, willful misconduct or bad faith of the Master Servicer or the
Special Servicer, as the case may be. The Trustee shall be liable to the Trust,
the Master Servicer, the Special Servicer and the Depositor for any expense
incurred by the Trust, the Master Servicer, the Special Servicer or the
Depositor resulting from any error in any of such tax or information returns
resulting from errors in the preparation of such returns caused by the
negligence, wilful misconduct or bad faith of the Trustee. Each indemnified
party shall immediately notify the indemnifying party or parties of the
existence of a claim for indemnification under this Section 12.1(e), and provide
the indemnifying party or parties, at the expense of such indemnifying party or
parties, an opportunity to contest the tax or assessment or expense giving rise
to such claim, provided that the failure to give such notification rights shall
not affect the indemnification rights in favor of the Trust under this Section
12.1(e). Any such indemnification shall survive the resignation or termination
of the Master Servicer, the Special Servicer, the Trustee and the Fiscal Agent
or the termination of this Agreement.
(f) The Trustee shall perform on behalf of each REMIC Pool all reporting
and other tax compliance duties that are the responsibility of such REMIC Pool
under the Code, REMIC Provisions, or other compliance guidance issued by the
Internal Revenue Service or any state or local taxing authority. Among its other
duties, the Trustee shall provide (i) to the Internal Revenue Service or other
Persons (including, but not limited to, any Person that transferred a Residual
Certificate to a Disqualified Organization or to an agent that has acquired a
Residual Certificate on behalf of a Disqualified Organization) such information
as is necessary for the application of any tax relating to the transfer of a
Residual Certificate to any Disqualified Organization and (ii) to the
Certificateholders such information or reports as are required by the Code or
REMIC Provisions.
(g) The Trustee shall forward to the Depositor copies of quarterly and
annual REMIC tax returns and Form 1099 information returns and such other
information within the control of the Trustee as the Depositor may reasonably
request in writing. Moreover, the Trustee shall forward to Certificateholders
such forms and furnish such information within its control as are required by
the Code to be furnished to them, shall prepare and file with the appropriate
state authorities as may to the actual knowledge of a Responsible Officer of the
Trustee be required by applicable law and shall prepare and disseminate to
Certificateholders Forms 1099 (or otherwise furnish information within the
control of the Trustee) to the extent required by applicable law. The Trustee
will make available to any Certificateholder any tax related information
required to
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be made available to such Certificateholder pursuant to the Code and any
Treasury Regulations thereunder.
(h) The Holder of Certificates representing the greatest Percentage
Interest in each Class of Residual Certificates shall be the Tax Matters Person
for the related REMIC Pool. The duties of the Tax Matters Person for each of the
REMIC Pools are hereby delegated to the Trustee, and each Residual
Certificateholder, by acceptance of its Residual Certificate, agrees, on behalf
of itself and all successor holders of such Residual Certificate, to such
delegation to the Trustee as their agent and attorney in fact. If the Code or
applicable Treasury regulations prohibits the Trustee from signing any
applicable Internal Revenue Service, court or other administrative documents or
from otherwise acting as Tax Matters Person (as an agent or otherwise), the
Trustee shall do or cause to be done whatever is necessary for the signing of
such documents and the taking of any other such act, and the Residual
Certificateholders shall reasonably cooperate with the Trustee in connection
therewith. The Trustee shall not be required to expend or risk its own funds or
otherwise incur any other financial liability in the performance of its duties
hereunder or in the exercise of any of its rights or powers (except to the
extent of the ordinary expenses of performing its duties under, or as otherwise
expressly provided in, this Agreement), if it shall have reasonable grounds for
believing that repayment of such funds or adequate indemnity against such risk
or liability is not reasonably assured to it.
(i) The Trustee, the Holders of the Residual Certificates, the Master
Servicer and the Special Servicer shall each exercise reasonable care, to the
extent within its control, and with respect to each of the Trustee, the Master
Servicer and the Special Servicer, within the scope of its express duties, and
shall each act in accordance with this Agreement and the REMIC Provisions in
order to create and maintain the status of each REMIC Pool as a REMIC or, as
appropriate, adopt a plan of complete liquidation.
(j) The Trustee, the Master Servicer, the Special Servicer, the Fiscal
Agent and the Holders of Residual Certificates shall not take any action or fail
to take any action or cause any REMIC Pool to take any action or fail to take
any action if any of such Persons knows or could, upon the exercise of
reasonable diligence, know, that, under the REMIC Provisions, such action or
failure to act, as the case may be, could (i) endanger the status of any REMIC
Pool as a REMIC or (ii) result in the imposition of a tax upon any REMIC Pool
(including but not limited to the tax on prohibited transactions as defined in
Section 860F(a)(2) of the Code), unless the Trustee has received an Opinion of
Counsel (at the expense of the party seeking to take such action) to the effect
that the contemplated action will not endanger such status or result in the
imposition of such a tax. Any action required under this section which would
result in an unusual or unexpected expense shall be undertaken at the expense of
the party seeking the Trustee, the Master Servicer, the Special Servicer, the
Fiscal Agent or the Holders of the Residual Certificates to undertake such
action.
(k) In the event that any tax is imposed on REMIC I, REMIC II or REMIC III,
including, without limitation, "prohibited transactions" taxes as defined in
Section 860F(a)(2) of the Code, any tax on "net income from foreclosure
property" as defined in Section 860G(c) of the Code, any taxes on contributions
to REMIC I, REMIC II or REMIC III after the Startup Day pursuant to Section
860G(d) of the Code, and any other tax imposed by the Code or any
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applicable provisions of state or local tax laws (other than any tax permitted
to be incurred by the Special Servicer pursuant to Section 8.20(a)), such tax,
together with all incidental costs and expenses (including, without limitation,
penalties and reasonable attorneys' fees), shall be charged to and paid by: (i)
the Trustee, if such tax arises out of or results from a breach of any of its
obligations under this Article XII; (ii) the Special Servicer, if such tax
arises out of or results from a breach by the Special Servicer of any of its
obligations under Article VIII or this Article XII; (iii) the Master Servicer,
if such tax arises out of or results from a breach by the Master Servicer of any
of its obligations under Article VIII or this Article XII; or (iv) the Trust in
all other instances. Any tax permitted to be incurred by the Special Servicer
pursuant to Section 8.20(a) shall be charged to and paid by the Master Servicer
(at the direction of the Trust) from the net income generated on the related REO
Property. Any such amounts payable by the Trust in respect of taxes shall be
paid by the Master Servicer (at the direction of the Trustee) out of amounts on
deposit in the Collection Account.
(l) The Trustee shall, for federal income tax purposes, maintain books and
records with respect to each REMIC Pool on a calendar year and on an accrual
basis. The books and records must be sufficient concerning the nature and amount
of each REMIC Pool's investments to show that such REMIC Pool has complied with
the REMIC Provisions.
(m) None of the Trustee, the Master Servicer or the Special Servicer shall
enter into any arrangement by which any REMIC Pool will receive a fee or other
compensation for services (other than under the circumstances described in, and
subject to the conditions of, Section 8.20(a)).
(n) In order to enable the Trustee to perform its duties as set forth
herein, the Depositor shall provide, or cause to be provided, to the Trustee
within ten (10) days after the Closing Date all information or data that the
Trustee reasonably determines to be relevant for tax purposes on the valuations
and offering prices of the Certificates, including, without limitation, the
yield, prepayment assumption, issue prices and projected cash flows of the
Senior Certificates, Subordinate Certificates and Residual Certificates, as
applicable, and the projected cash flows of the Mortgage Loans. Thereafter, the
Depositor shall provide to the Trustee or its designee, promptly upon request
therefor, any such additional information or data within the Depositor's
possession or knowledge that the Trustee may, from time to time, reasonably
request in order to enable the Trustee to perform its duties as set forth
herein. The Trustee is hereby directed to use any and all such information or
data provided by the Depositor in the preparation of all federal and state
income or franchise tax and information returns and reports for each REMIC Pool
to Certificateholders as required herein. The Depositor hereby indemnifies the
Trustee, the Fiscal Agent and each REMIC Pool for any losses, liabilities,
damages, claims, expenses (including attorneys' fees) or assessments against the
Trustee, the Fiscal Agent and each REMIC Pool arising from any errors or
miscalculations of the Trustee pursuant to this Section that result from any
failure of the Depositor to provide, or to cause to be provided, accurate
information or data to the Trustee (but not resulting from the methodology
employed by the Trustee) on a timely basis and such indemnification shall
survive the termination of this Agreement and the termination or resignation of
the Trustee or Fiscal Agent; provided, however, that to the extent that any
Certificates have been transferred to a Seller under circumstances in which the
fair market value of such Certificates is their issue price, the Depositor may
exclusively rely on the accuracy of a
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determination of such fair market value by such Seller in supplying information
to the Trustee pursuant to this Section 12.1(n).
The Trustee agrees that all such information or data so obtained by it is
to be regarded as confidential information and agrees that it shall use its best
reasonable efforts to retain in confidence, and shall ensure that its officers,
employees and representatives retain in confidence, and shall not disclose,
without the prior written consent of the Depositor, any or all of such
information or data, or make any use whatsoever (other than for the purposes
contemplated by this Agreement) of any such information or data without the
prior written consent of the Depositor, unless such information is generally
available to the public (other than as a result of a breach of this Section
12.1(n)) or is required by law or applicable regulations to be disclosed or is
disclosed (i) to independent auditors and accountants, counsel and other
professional advisers of the Trustee and its parent, or (ii) in connection with
enforcing its rights and obligations under this Agreement.
(o) At all times as may be required by the Code, the Trustee, the Master
Servicer and the Special Servicer each shall, to the extent within its control
and the scope of its duties more specifically set forth herein, maintain
substantially all of the assets of each REMIC Pool as "qualified mortgages" as
defined in Section 860G(a)(3) of the Code and "permitted investments" as defined
in Section 860G(a)(5) of the Code.
Section 12.2 Prohibited Transactions and Activities. None of the Trustee,
the Master Servicer or the Special Servicer shall, to the extent within its
control, permit the sale, disposition or substitution of any of the Mortgage
Loans (except in a disposition pursuant to (i) the foreclosure, default or
imminent default of a Mortgage Loan, (ii) the bankruptcy or insolvency of any
REMIC Pool, (iii) the termination of any REMIC Pool in a "qualified liquidation"
as defined in Section 860F(a)(4) of the Code, or (iv) a repurchase or
substitution by any Seller, any Additional Warranting Party or the Conti
Guarantor as contemplated by Article II hereof), nor acquire any assets for the
Trust, except as provided in Article II hereof, nor sell or dispose of any
investments in the Collection Account or Distribution Account for gain, nor
accept any contributions to any REMIC Pool (other than a cash contribution
during the 3-month period beginning on the Startup Day), unless it has received
an Opinion of Counsel (at the expense of the Person requesting such action) to
the effect that such sale, disposition, acquisition, substitution, or acceptance
will not (a) affect adversely the status of any REMIC Pool as a REMIC or of the
REMIC I Regular Interests, the REMIC II Regular Interests or the REMIC III
Regular Certificates, as the case may be, as the regular interests therein, (b)
affect the distribution of interest or principal on the Certificates, (c) result
in the encumbrance of the assets transferred or assigned to any REMIC Pool
(except pursuant to the provisions of this Agreement) or (d) cause any REMIC
Pool to be subject to a tax on "prohibited transactions" or "prohibited
contributions" or other tax pursuant to the REMIC Provisions.
Section 12.3 Liability with Respect to Certain Taxes and Loss of REMIC
Status. In the event that any REMIC Pool fails to qualify as a REMIC, loses its
status as a REMIC, or incurs state or local taxes, or tax as a result of a
prohibited transaction or prohibited contribution subject to taxation under the
REMIC Provisions due to the negligent performance by the Trustee of its duties
and obligations set forth herein, the Trustee shall be liable to the REMIC
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Pools and the Holders of the Residual Certificates for any and all losses,
claims, damages, liabilities or expenses ("Losses") resulting from such
negligence and relating to the Residual Certificates; provided, however, that
the Trustee shall not be liable pursuant to this Section 12.3 to the extent that
any such Losses are attributable to the action or inaction of the Master
Servicer, the Special Servicer, the Depositor or the Holders of such Residual
Certificates or to the extent that any such Losses result from any actions or
failure to act based upon reliance on an Opinion of Counsel or from
misinformation provided by the Master Servicer, the Special Servicer, the
Depositor or such Holders of the Residual Certificates on which the Trustee has
relied. The foregoing shall not be deemed to limit or restrict the rights and
remedies of the Trust or the Certificateholders under any other provision of
this Agreement or now or hereafter otherwise existing at law or in equity. The
Trustee shall be entitled to intervene in any litigation in connection with the
foregoing and to maintain control over its defense.
ARTICLE XIII
MISCELLANEOUS PROVISIONS
Section 13.1 Binding Nature of Agreement. This Agreement shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and permitted assigns.
Section 13.2 Entire Agreement. This Agreement contains the entire agreement
and understanding between the parties hereto with respect to the subject matter
hereof, and supersedes all prior and contemporaneous agreements, understandings,
inducements and conditions, express or implied, oral or written, of any nature
whatsoever with respect to the subject matter hereof. The express terms hereof
control and supersede any course of performance or usage of the trade
inconsistent with any of the terms hereof.
Section 13.3 Amendment.
(a) This Agreement may be amended from time to time by the parties hereto,
without notice to or the consent of any of the Holders, (i) to cure any
ambiguity, (ii) to cause the provisions herein to conform to or be consistent
with or in furtherance of the statements made with respect to the Certificates,
the Trust or this Agreement in the Prospectus or the Memorandum, or to correct
or supplement any provision herein which may be inconsistent with any other
provisions herein, (iii) to amend any provision hereof to the extent necessary
or desirable to maintain the status of each REMIC Pool as a REMIC for the
purposes of federal income tax law (or comparable provisions of state income tax
law), (iv) to make any other provisions with respect to matters or questions
arising under or with respect to this Agreement not inconsistent with the
provisions hereof, or (v) to modify, add to or eliminate the provisions of
Article III relating to transfers of Residual Certificates as provided under
such Article; provided that (i) no such amendment shall adversely affect the
status of any REMIC Pool as a REMIC and (ii) no such amendment effected pursuant
to clause (i), (ii) or (iv) of the preceding sentence shall adversely affect in
any material respect the interests of any Holder not consenting thereto. Prior
to entering into any amendment without the consent of Holders pursuant to this
paragraph, the Trustee may
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require (at the expense of the party requesting such amendment, except that if
the Trustee requests such amendment, such amendment shall be at the expense of
the Depositor, if the Depositor consents) a Nondisqualification Opinion and an
Opinion of Counsel to the effect that such amendment is permitted under this
paragraph. The placement of an "original issue discount" legend on, or any
change required to correct any such legend previously placed on, a Certificate
shall not be deemed an amendment to this Agreement.
(b) This Agreement may also be amended from time to time by the parties
hereto with the consent of the Holders of Certificates entitled to not less than
51% of the Voting Rights allocated to all Classes affected by such amendment,
for the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of this Agreement or of modifying in any
manner the rights of the Holders or the rights and obligations of any party
hereto; provided that no such amendment may (i) reduce in any manner the amount
of, or delay the timing of the distributions required to be made on any
Certificate without the consent of the Holder of such Certificate, (ii)
adversely affect in any material respect the interests of the Holders of any
Class of Certificates in a manner other than as described in the immediately
preceding clause (i), without the consent of all the Holders of Certificates of
such Class, or (iii) modify the provisions of this Section 13.3, without the
consent of all the Holders of Certificates. Prior to entering into any amendment
pursuant to this paragraph, the Trustee may require (at the expense of the party
requesting the amendment) a Nondisqualification Opinion and an Opinion of
Counsel to the effect that such amendment is permitted under this paragraph.
(c) Promptly after the execution of any such amendment, the Trustee shall
furnish written notification of the substance of such amendment to each Holder
and the Rating Agencies.
(d) It shall not be necessary for the consent of Holders under this Section
13.3 to approve the particular form of any proposed amendment, but it shall be
sufficient if such consent shall approve the substance thereof. The manner of
obtaining such consents and of evidencing the authorization of the execution
thereof by Holders shall be in the affirmative and in writing and shall be
subject to such reasonable regulations as the Trustee may prescribe.
(e) Notwithstanding any other provision of this Agreement, for purposes of
the giving or withholding of consents pursuant to this Section 13.3,
Certificates registered in the name of the Depositor, the Master Servicer, the
Special Servicer or any of their respective Affiliates shall be entitled to the
same Voting Rights with respect to matters described above as they would if any
other Person held such Certificates.
Section 13.4 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
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 (WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED
IN THE STATE OF NEW YORK, OTHER THAN THE PRINCIPLES SET FORTH IN SECTION 5-1401
OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK).
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Section 13.5 Notices. All demands, notices and communications hereunder
shall be in writing and shall be deemed to have been duly given when received by
(a) in the case of the Depositor, Morgan Stanley Capital I Inc., 1585 Broadway,
New York, New York 10036, Attention: Russell Rahbany; (b) in the case of the
Trustee and the Fiscal Agent, at the Corporate Trust Office; or (c) in the case
of the Master Servicer and the Special Servicer, GMAC Commercial Mortgage
Corporation, 650 Dresher Road, Horsham, Pennsylvania 19044, Attention: Servicing
Manager, and GMAC Commercial Mortgage Corporation, 550 California Street, San
Francisco, California 94104, Attention: Servicing Manager (with a copy to GMAC
Mortgage Corporation, 100 Witmer Road, Horsham, Pennsylvania 19044, Attention:
General Counsel); or as to each party hereto such other address as may hereafter
be furnished by such party to the other parties hereto in writing. Any notice
required or permitted to be given to a Holder shall be mailed by first class
mail, postage prepaid, at the address of such Holder as shown in the Certificate
Register. Any notice so mailed within the time prescribed in this Agreement
shall be conclusively presumed to have been duly given, whether or not the
Holder receives such notice.
Section 13.6 Severability of Provisions. If any one or more of the
covenants, agreements, provisions or terms of this Agreement shall be for any
reason whatsoever held invalid, then such 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 13.7 Indulgences; No Waivers. Neither the failure nor any delay on
the part of a party to exercise any right, remedy, power or privilege under this
Agreement shall operate as a waiver thereof, nor shall any single or partial
exercise of any right, remedy, power or privilege preclude any other or further
exercise of the same or of any other right, remedy, power or privilege, nor
shall any waiver of any right, remedy, power or privilege with respect to any
occurrence be construed as a waiver of such right, remedy, power or privilege
with respect to any other occurrence. No waiver shall be effective unless it is
in writing and is signed by the party asserted to have granted such waiver.
Section 13.8 Headings Not to Affect Interpretation. The headings contained
in this Agreement are for convenience of reference only, and shall not be used
in the interpretation hereof.
Section 13.9 Benefits of Agreement. Nothing in this Agreement or in the
Certificates, express or implied, shall give to any Person, other than the
parties to this Agreement and their successors hereunder and the Holders of the
Certificates, any benefit or any legal or equitable right, power, remedy or
claim under this Agreement.
Section 13.10 Special Notices to the Rating Agencies.
(a) The Trustee (or, in the case of the items in clauses (vi) and (vii),
the successor trustee) shall give prompt notice to the Rating Agencies and,
except in the case of clause (viii), the Operating Adviser of the occurrence of
any of the following events of which it has
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notice:
(i) any amendment to this Agreement pursuant to Section 13.3 hereof;
(ii) any repurchase or replacement of any Mortgage Loan by a Seller,
an Additional Warranting Party or the Conti Guarantor;
(iii) waiver of a due-on-sale or due-on-encumbrance clause as provided
in Section 8.6;
(iv) any resignation of the Master Servicer, the Special Servicer or
the Fiscal Agent pursuant to this Agreement;
(v) the appointment of any successor to the Master Servicer, the
Special Servicer or the Fiscal Agent pursuant to this Agreement;
(vi) the resignation or removal of the Trustee pursuant to Section
7.6;
(vii) the appointment of a successor trustee pursuant to Section 7.7;
(viii) the election, resignation or removal of an Operating Adviser
pursuant to Section 8.32; or
(ix) termination of the Trust pursuant to Article X hereof.
(b) All notices to the Rating Agencies shall be in writing and sent by
first class mail, telecopy or overnight courier, as follows:
If to DCR, to:
Duff & Phelps Credit Rating Co.
55 East Monroe Street
Chicago, Illinois 60603
Attention: Structured Finance-Commercial Real Estate Monitoring
Telecopy: (312) 263-2852
If to Moody's, to:
Moody's Investor Service
99 Church Street
New York, New York 10007
Attention: Commercial Mortgage Surveillance
Telecopy: (212) 553-1350
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If to any other Rating Agency, at such address as shall be provided in
writing to the Depositor by such Rating Agency.
(c) The Master Servicer and the Special Servicer shall each deliver to the
Trustee, and the Trustee shall deliver to the Rating Agencies and the Depositor,
copies of all reports prepared by the Master Servicer or Special Servicer, as
the case may be, pursuant to this Agreement and required to be delivered to each
other, the Trustee or the Certificateholders, together with any other
information as reasonably requested by the Rating Agencies and the Depositor.
(d) Any notice or other document required to be delivered or mailed by the
Depositor, the Master Servicer, the Special Servicer or the Trustee shall be
given by such parties, respectively, on a best efforts basis and only as a
matter of courtesy and accommodation to the Rating Agencies, unless otherwise
specifically required herein, and such parties, respectively, shall have no
liability for failure to deliver any such notice or document to the Rating
Agencies.
Section 13.11 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original, and all of which
together shall constitute one and the same instrument.
Section 13.12 Intention of Parties.
(a) It is the express intent of the parties hereto that the conveyance of
the Mortgage Loans and related property to the Trustee, for the benefit of the
Certificateholders, by the Depositor as provided in Section 2.1 be, and be
construed as, an absolute sale of the Mortgage Loans and related property. It
is, further, not the intention of the parties that such conveyance be deemed a
pledge of the Mortgage Loans and related property 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, such conveyance is held
not to be an absolute sale of the Mortgage Loans or any related property, or the
Mortgage Loans or any related property is for any other reason held to be the
property of the Depositor, then:
(i) This Agreement shall be deemed to be a security agreement.
(ii) The conveyance provided for in Section 2.1 shall be deemed to be
a grant by the Depositor to the Trustee, for the benefit of the
Certificateholders, of a security interest in all of the Depositor's right,
title, and interest, whether now owned or hereafter acquired, in and to:
(A) All accounts, contract rights, general intangibles, chattel
paper, instruments, documents, money, deposit accounts, certificates
of deposit, goods, letters of credit, advices of credit and
uncertificated securities consisting of, arising from or relating to
any of the property described in clauses (1)-(4) below: (1) the
Mortgage Loans (including, without limitation, the Mortgage Notes, the
related Mortgages, the related security agreements, and the related
title, hazard and other insurance policies) identified on the Mortgage
Loan Schedule, including all
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Replacement Mortgage Loans, together with all payments and other
collections with respect thereto after the Cut-off Date (other than
Monthly Payments of principal and interest due on or before the
Cut-off Date) the related Mortgage Files; (2) the Distribution Account
and the Collection Account, including, without limitation, all funds
and investments therein and all income from the investment of funds
therein (including any accrued discount realized on liquidation of any
investment purchased at a discount); (3) the REMIC I Regular Interests
and the REMIC II Regular Interests; and (4) the Mortgage Loan Purchase
Agreements;
(B) All accounts, contract rights, general intangibles, chattel
paper, instruments, documents, money, deposit accounts, certificates
of deposit, goods, letters of credit, advices of credit,
uncertificated securities, and other rights arising from or by virtue
of the disposition of, or collections with respect to, or insurance
proceeds payable with respect to, or claims against other Persons with
respect to, all or any part of the collateral described in clause (A)
above (including any accrued discount realized on liquidation of any
investment purchased at a discount); and
(C) All cash and non-cash proceeds of the collateral described in
clauses (A) and (B) above.
(iii) The possession by the Trustee of the Mortgage Notes, the
Mortgages and such other goods, letters of credit, advices of credit,
instruments, money, documents, chattel paper or certificated securities
shall be deemed to be "possession by the secured party," or possession by a
purchaser or a person designated by him or her, for purposes of perfecting
the security interest pursuant to the Uniform Commercial Code (including,
without limitation, Sections 9-305, 8-313 or 8-321 thereof) as in force in
each relevant jurisdiction.
(iv) Notifications to Persons holding such property, and
acknowledgments, receipts or confirmations from Persons holding such
property, shall be deemed to be notifications to, or acknowledgments,
receipts or confirmations from, financial intermediaries, bailees or agents
(as applicable) of the Trustee for the purpose of perfecting such security
interest under applicable law.
(b) The Depositor and, at the Depositor's direction, the Master Servicer
and the Trustee, shall, to the extent consistent with this Agreement, take such
reasonable actions as may be necessary to ensure that, if this Agreement were
deemed to create a security interest in the property described above, 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 the Agreement. The Master Servicer shall file, at the direction of the
Depositor, all filings necessary to maintain the effectiveness of any original
filings necessary under the Uniform Commercial Code as in effect in any relevant
jurisdiction to perfect the Trustee's security interest in such property,
including, without limitation, continuation statements. In connection herewith,
the Trustee shall have all of the rights and remedies of a secured party and
creditor under the
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Uniform Commercial Code as in force in the relevant jurisdiction.
(c) The Depositor shall not take any action inconsistent with the Trust's
ownership of the Mortgage Loans.
Section 13.13 Recordation of Agreement. This Agreement is subject to
recordation in all appropriate public offices for real property records in all
the counties or other comparable jurisdictions in which any or all of the
properties subject to the Mortgages are situated, and in any other appropriate
public recording office or elsewhere. Such recordation, if any, shall be
effected by the Master Servicer at the expense of the Trust payable out of the
Collection Account, but only upon direction of the Trustee accompanied by an
Opinion of Counsel (the cost of which shall be payable out of the Collection
Account) to the effect that such recordation materially and beneficially affects
the interests of the Certificateholders of the Trust.
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IN WITNESS WHEREOF, the parties hereto have caused their names to be signed
hereto by their respective officers thereunto duly authorized as of the day and
year first above written.
MORGAN STANLEY CAPITAL I INC.,
as Depositor
By: /s/ Russell A. Rahbany
--------------------------
Name: Russell A. Rahbany
Title: Vice President
GMAC COMMERCIAL MORTGAGE
CORPORATION, as Master Servicer and
Special Servicer
By: /s/ Elisa George
--------------------------
Name: Elisa George
Title: Vice President
LASALLE NATIONAL BANK,
as Trustee
By: /s/ Russell M. Goldenberg
--------------------------
Name: Russell M. Goldenberg
Title: Senior Vice President
ABN AMRO BANK N.V., as Fiscal Agent
By: /s/ Mary C. Casey
--------------------------
Name: Mary C. Casey
Title: Vice President
By: /s/ Robert C. Smolka
--------------------------
Name: Robert C. Smolka
Title: Group Vice President
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STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On this ___th day of March, 1997, before me, a notary public in and for
said State, personally appeared Russell A. Rahbany, personally known to me (or
proved to me on the basis of satisfactory evidence) to be the person who
executed the within instrument as _______________________ on behalf of Morgan
Stanley Capital I Inc., and acknowledged to me that such corporation executed
the within instrument pursuant to its by-laws or a resolution of its Board of
Directors.
IN WITNESS WHEREOF, I have hereunder set my hand and affixed my official
seal the day and year in this certificate first above written.
_________________________
Notary Public
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STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On this ___th day of March, 1997, before me, a notary public in and for
said State, personally appeared ____________________, personally known to me (or
proved to me on the basis of satisfactory evidence) to be the person who
executed the within instrument as _________________ of GMAC Commercial Mortgage
Corporation, and acknowledged to me that such corporation executed the within
instrument pursuant to its by-laws or a resolution of its Board of Directors.
IN WITNESS WHEREOF, I have hereunder set my hand and affixed my official
seal the day and year in this certificate first above written.
_________________________
Notary Public
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STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On this ___th day of March, 1997, before me, a notary public in and for
said State, personally appeared ____________________, personally known to me (or
proved to me on the basis of satisfactory evidence) to be the person who
executed the within instrument as ___________________ on behalf of LaSalle
National Bank, and acknowledged to me that such nationally chartered bank
executed the within instrument pursuant to its by-laws or a resolution of its
Board of Directors.
IN WITNESS WHEREOF, I have hereunder set my hand and affixed my official
seal the day and year in this certificate first above written.
_________________________
Notary Public
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STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On this ___th day of March, 1997, before me, a notary public in and for
said State, personally appeared ___________________, personally known to me (or
proved to me on the basis of satisfactory evidence) to be one of the persons who
executed the within instrument as _____________________ on behalf of ABN AMRO
Bank N.V., and acknowledged to me that such banking corporation executed the
within instrument pursuant to its by-laws or a resolution of its Board of
Directors.
IN WITNESS WHEREOF, I have hereunder set my hand and affixed my official
seal the day and year in this certificate first above written.
_________________________
Notary Public
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STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On this ___th day of March, 1997, before me, a notary public in and for
said State, personally appeared __________________, personally known to me (or
proved to me on the basis of satisfactory evidence) to be one of the persons who
executed the within instrument as __________________ on behalf of ABN AMRO Bank
N.V., and acknowledged to me that such banking corporation executed the within
instrument pursuant to its by-laws or a resolution of its Board of Directors.
IN WITNESS WHEREOF, I have hereunder set my hand and affixed my official
seal the day and year in this certificate first above written.
_________________________
Notary Public
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EXHIBIT A-1
FORM OF CLASS A-1A CERTIFICATE
CLASS A-1A COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 1997-C1
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool (the "Mortgage Pool") of multifamily and
commercial mortgage loans (the "Mortgage Loans"), such pool being formed and
sold by
MORGAN STANLEY CAPITAL I INC.
<TABLE>
<S> <C>
Pass-Through Rate: Certificate Principal Balance of this Variable
6.8500% per annum Class A-1A Certificate as of the
Issue Date: $__________
Date of Pooling and Servicing Class Principal Balance of all the Class
Agreement: March 1, 1997 A-1A Certificates as of the Issue Date:
$61,700,000
Cut-off Date: March 1, 1997 Aggregate unpaid principal balance of the
Issue Date: March 26, 1997 Mortgage Pool as of the Cut-off Date, after
deducting payments of principal due on or before
such date, whether or not received: $640,657,923
First Distribution Date:
April 15, 1997
Master Servicer and Special Servicer: Trustee: LaSalle National Bank
GMAC Commercial Mortgage Corporation CUSIP No.: 61745M AE 3
Certificate No. A-1A-__
</TABLE>
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR, THE
TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
<PAGE>
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN MORGAN
STANLEY CAPITAL I INC., GMAC COMMERCIAL MORTGAGE CORPORATION, LASALLE NATIONAL
BANK, ABN AMRO BANK N.V. OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH HEREIN. IN ADDITION, FOLLOWING THE
DATE ON WHICH THE AGGREGATE CERTIFICATE PRINCIPAL BALANCE OF THE CLASS B, CLASS
C, CLASS D, CLASS E, CLASS F, CLASS G, CLASS H AND CLASS J CERTIFICATES OF THE
SAME SERIES IS REDUCED TO ZERO, THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE REDUCED IN CONNECTION WITH LOSSES ON THE MORTGAGE LOANS AND
CERTAIN UNANTICIPATED EXPENSES. ACCORDINGLY, THE OUTSTANDING CERTIFICATE
PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE.
This certifies that _______________________________________ is the
registered owner of the Percentage Interest evidenced by this Class A-1A
Certificate (obtained by dividing the principal balance of this Class A-1A
Certificate (its "Certificate Principal Balance") as of the Issue Date by the
aggregate principal balance of all the Class A-1A Certificates (their "Class
Principal Balance") as of the Issue Date) in that certain beneficial ownership
interest, evidenced by all the Class A-1A Certificates, in the Trust Fund
created pursuant to a Pooling and Servicing Agreement, dated as specified above
(the "Agreement"), between 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, the capitalized terms used herein have the
respective meanings assigned in the Agreement. This Certificate is issued under
and is subject to the terms, provisions and conditions of the Agreement, to
which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on the
15th day of each month or, if such 15th day is not a Business Day, the Business
Day immediately following (each, a "Distribution Date"), commencing on the First
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"), in an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed to the Holders of the
Class A-1A Certificates on the applicable
A-1-2
<PAGE>
Distribution Date pursuant to the Agreement. All distributions made under the
Agreement on any Class A-1A Certificate will be made by the Trustee by wire
transfer in immediately available funds to the account of the Person entitled
thereto at a bank or other entity having appropriate facilities therefor, if
such Certificateholder shall have provided the Trustee with wiring instructions
on or prior to the Record Date for such distribution (which wiring instructions
may be in the form of a standing order applicable to all subsequent
distributions as well) or otherwise by check mailed to the address of such
Certificateholder appearing in the Certificate Register. Notwithstanding the
above, the final distribution on this Certificate (determined without regard to
any possible future reimbursement of any Realized Loss or Expense Loss
previously allocated to this Certificate) will be made after due notice by the
Trustee of the pendency of such distribution and only upon presentation and
surrender of this Certificate at the offices of the Certificate Registrar
appointed as provided in the Agreement or such other location as may be
specified in such notice. Also notwithstanding the foregoing, any distribution
that may be made with respect to this Certificate in reimbursement of any
Realized Loss or Expense Loss previously allocated to this Certificate, which
reimbursement is to occur after the date on which this Certificate is
surrendered as contemplated by the preceding sentence, will be made by check
mailed to the address of the Holder that surrenders this Certificate as such
address last appeared in the Certificate Register or to any such other address
of which the Trustee is subsequently notified in writing.
Any distribution to the Holder of this Certificate in reduction of the
Certificate Principal Balance hereof is binding on such Holder and all future
Holders of this Certificate and any Certificate issued upon the transfer hereof
or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Depositor's Mortgage Pass-Through Certificates, Series 1997-C1 (the
"Certificates") are limited in right of distribution to certain collections and
recoveries respecting the Mortgage Loans, all as more specifically set forth
herein and in the Agreement. As provided in the Agreement, withdrawals from the
Collection Account and the Distribution Account may be made from time to time
for purposes other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
The Class A-1A Certificates are issuable in fully registered form only,
without coupons, in minimum denominations specified in the Agreement. As
provided in the Agreement and subject to certain limitations therein set forth,
Class A-1A Certificates are exchangeable for new Class A-1A Certificates in
authorized denominations evidencing the same aggregate Percentage Interest, as
requested by the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
A-1-3
<PAGE>
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Class A-1A Certificates in authorized
denominations evidencing the same aggregate Percentage Interest will be issued
to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer or
exchange of Class A-1A Certificates, but the Trustee or the Certificate
Registrar may require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any transfer or
exchange of Class A-1A Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
Prior to due presentment of this Certificate for registration of transfer,
the Depositor, the Master Servicer, the Special Servicer, the Trustee, the
Fiscal Agent, the Certificate Registrar and any agents 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 or any such
agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall terminate
upon distribution (or provision for distribution) to the Certificateholders of
all amounts held by or on behalf of the Trustee and required to be distributed
to them pursuant to the Agreement following the earlier of (i) the final payment
or other liquidation (or any advance with respect thereto) of the last Mortgage
Loan or REO Property remaining in the Trust Fund, and (ii) the purchase by the
Depositor, the Master Servicer, the Special Servicer or the Holders of Class R-I
Certificates representing a majority Percentage Interest in such Class, at a
price determined as provided in the Agreement, of all Mortgage Loans and any REO
Properties remaining in the Trust Fund. The Agreement permits, but does not
require, the Depositor, the Master Servicer, or such Holders to purchase from
the Trust Fund all Mortgage Loans and any REO Properties remaining therein at
such time as the aggregate Stated Principal Balance of the Mortgage Pool is less
than 3% of the aggregate Cut-off Date Principal Balance of the Mortgage Pool
specified on the face hereof. The exercise of such right will effect early
retirement of the Certificates.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer, the Trustee and the Fiscal
Agent thereunder and the rights of the Certificateholders thereunder, at any
time by the Depositor, the Master Servicer, the Special Servicer, the Trustee
and the Fiscal Agent with the consent of the Holders of Certificates entitled to
at least 51% of the Voting Rights allocated to the affected Classes. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
A-1-4
<PAGE>
The Agreement also permits the amendment thereof, in certain circumstances,
including any amendment necessary to maintain the status of REMIC I, REMIC II or
REMIC III as a REMIC, without the consent of the Holders of any of the
Certificates.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it will
look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal laws of
the State of New York applicable to agreements made and to be performed in said
State, and the obligations, rights and remedies of the Holder hereof shall be
determined in accordance with such laws.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
LaSalle National Bank,
as Trustee
By:_________________________________
Authorized Officer
A-1-5
<PAGE>
CERTIFICATE OF AUTHENTICATION
This is one of the Class A-1A Certificates referred to in the
within-mentioned Agreement.
Dated:
LaSalle National Bank,
as Certificate Registrar
By:_________________________________
Authorized Officer
A-1-6
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(please print or typewrite name and address
including postal zip code of assignee)
the beneficial ownership interest in the Trust Fund evidenced by the within
Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage
Pass-Through Certificate of a like Percentage Interest and Class to the above
named assignee and delivery of such Commercial Mortgage Pass-Through Certificate
to the following address:
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
Dated:___________
--------------------------------------
Signature by or on behalf of Assignor
--------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise,
in immediately available funds, to_________________________________________ for
the account of_____________________________________________________________.
Distributions made by check (such check to be made payable to
_______________) and all applicable statements and notices should be mailed to
_______________________________________________________________________.
This information is provided by ___________________________, the assignee
named above, or ________________, as its agent.
A-1-7
<PAGE>
EXHIBIT A-2
FORM OF CLASS A-1B CERTIFICATE
CLASS A-1B COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 1997-C1
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool (the "Mortgage Pool") of multifamily and
commercial mortgage loans (the "Mortgage Loans"), such pool being formed and
sold by
MORGAN STANLEY CAPITAL I INC.
<TABLE>
<S> <C>
Pass-Through Rate: Certificate Principal Balance of this Variable
7.4600% per annum Class A-1B Certificate as of the
Issue Date: $______________
Date of Pooling and Servicing Class Principal Balance of all the Class
Agreement: March 1, 1997 A-1B Certificates as of the Issue Date:
$193,000,000
Cut-off Date: March 1, 1997 Aggregate unpaid principal balance of the
Issue Date: March 26, 1997 Mortgage Pool as of the Cut-off Date, after
deducting payments of principal due on or before
such date, whether or not received: $640,657,923
First Distribution Date:
April 15, 1997
Master Servicer and Special Servicer: Trustee: LaSalle National Bank
GMAC Commercial Mortgage Corporation CUSIP No.: 61745M AF 0
Certificate No. A-1B-__
</TABLE>
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR, THE
TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF
A-2-1
<PAGE>
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 MORGAN
STANLEY CAPITAL I INC., GMAC COMMERCIAL MORTGAGE CORPORATION, LASALLE NATIONAL
BANK, ABN AMRO BANK N.V. OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH HEREIN. IN ADDITION, FOLLOWING THE
DATE ON WHICH THE AGGREGATE CERTIFICATE PRINCIPAL BALANCE OF THE CLASS B, CLASS
C, CLASS D, CLASS E, CLASS F, CLASS G, CLASS H AND CLASS J CERTIFICATES OF THE
SAME SERIES IS REDUCED TO ZERO, THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE REDUCED IN CONNECTION WITH LOSSES ON THE MORTGAGE LOANS AND
CERTAIN UNANTICIPATED EXPENSES. ACCORDINGLY, THE OUTSTANDING CERTIFICATE
PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE.
This certifies that _______________________________________ is the
registered owner of the Percentage Interest evidenced by this Class A-1B
Certificate (obtained by dividing the principal balance of this Class A-1B
Certificate (its "Certificate Principal Balance") as of the Issue Date by the
aggregate principal balance of all the Class A-1B Certificates (their "Class
Principal Balance") as of the Issue Date) in that certain beneficial ownership
interest, evidenced by all the Class A-1B Certificates, in the Trust Fund
created pursuant to a Pooling and Servicing Agreement, dated as specified above
(the "Agreement"), between 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, the capitalized terms used herein have the
respective meanings assigned in the Agreement. This Certificate is issued under
and is subject to the terms, provisions and conditions of the Agreement, to
which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on the
15th day of each month or, if such 15th day is not a Business Day, the Business
Day immediately following (each, a "Distribution Date"), commencing on the First
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business
A-2-2
<PAGE>
Day of the month immediately preceding the month of such distribution (the
"Record Date"), in an amount equal to the product of the Percentage Interest
evidenced by this Certificate and the amount required to be distributed to the
Holders of the Class A-1B Certificates on the applicable Distribution Date
pursuant to the Agreement. All distributions made under the Agreement on any
Class A-1B Certificate will be made by the Trustee by wire transfer in
immediately available funds to the account of the Person entitled thereto at a
bank or other entity having appropriate facilities therefor, if such
Certificateholder shall have provided the Trustee with wiring instructions on or
prior to the Record Date for such distribution (which wiring instructions may be
in the form of a standing order applicable to all subsequent distributions as
well) or otherwise by check mailed to the address of such Certificateholder
appearing in the Certificate Register. Notwithstanding the above, the final
distribution on this Certificate (determined without regard to any possible
future reimbursement of any Realized Loss or Expense Loss previously allocated
to this Certificate) will be made after due notice by the Trustee of the
pendency of such distribution and only upon presentation and surrender of this
Certificate at the offices of the Certificate Registrar appointed as provided in
the Agreement or such other location as may be specified in such notice. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Expense Loss
previously allocated to this Certificate, which reimbursement is to occur after
the date on which this Certificate is surrendered as contemplated by the
preceding sentence, will be made by check mailed to the address of the Holder
that surrenders this Certificate as such address last appeared in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
Any distribution to the Holder of this Certificate in reduction of the
Certificate Principal Balance hereof is binding on such Holder and all future
Holders of this Certificate and any Certificate issued upon the transfer hereof
or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Depositor's Mortgage Pass-Through Certificates, Series 1997-C1 (the
"Certificates") are limited in right of distribution to certain collections and
recoveries respecting the Mortgage Loans, all as more specifically set forth
herein and in the Agreement. As provided in the Agreement, withdrawals from the
Collection Account and the Distribution Account may be made from time to time
for purposes other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
The Class A-1B Certificates are issuable in fully registered form only,
without coupons, in minimum denominations specified in the Agreement. As
provided in the Agreement and subject to certain limitations therein set forth,
Class A-1B Certificates are exchangeable for new Class A-1B Certificates in
authorized denominations evidencing the same aggregate Percentage Interest, as
requested by the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this
A-2-3
<PAGE>
Certificate for registration of transfer at the offices of the Certificate
Registrar, duly endorsed by, or accompanied by a written instrument of transfer
in the form satisfactory to the Certificate Registrar duly executed by, the
Holder hereof or his attorney duly authorized in writing, and thereupon one or
more new Class A-1B Certificates in authorized denominations evidencing the same
aggregate Percentage Interest will be issued to the designated transferee or
transferees.
No service charge will be imposed for any registration of transfer or
exchange of Class A-1B Certificates, but the Trustee or the Certificate
Registrar may require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any transfer or
exchange of Class A-1B Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
Prior to due presentment of this Certificate for registration of transfer,
the Depositor, the Master Servicer, the Special Servicer, the Trustee, the
Fiscal Agent, the Certificate Registrar and any agents 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 or any such
agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall terminate
upon distribution (or provision for distribution) to the Certificateholders of
all amounts held by or on behalf of the Trustee and required to be distributed
to them pursuant to the Agreement following the earlier of (i) the final payment
or other liquidation (or any advance with respect thereto) of the last Mortgage
Loan or REO Property remaining in the Trust Fund, and (ii) the purchase by the
Depositor, the Master Servicer, the Special Servicer or the Holders of Class R-I
Certificates representing a majority Percentage Interest in such Class, at a
price determined as provided in the Agreement, of all Mortgage Loans and any REO
Properties remaining in the Trust Fund. The Agreement permits, but does not
require, the Depositor, the Master Servicer, or such Holders to purchase from
the Trust Fund all Mortgage Loans and any REO Properties remaining therein at
such time as the aggregate Stated Principal Balance of the Mortgage Pool is less
than 3% of the aggregate Cut-off Date Principal Balance of the Mortgage Pool
specified on the face hereof. The exercise of such right will effect early
retirement of the Certificates.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer, the Trustee and the Fiscal
Agent thereunder and the rights of the Certificateholders thereunder, at any
time by the Depositor, the Master Servicer, the Special Servicer, the Trustee
and the Fiscal Agent with the consent of the Holders of Certificates entitled to
at least 51% of the Voting Rights allocated to the affected Classes. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future
A-2-4
<PAGE>
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain circumstances, including any amendment necessary to maintain
the status of REMIC I, REMIC II or REMIC III as a REMIC, without the consent of
the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it will
look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal laws of
the State of New York applicable to agreements made and to be performed in said
State, and the obligations, rights and remedies of the Holder hereof shall be
determined in accordance with such laws.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
LaSalle National Bank,
as Trustee
By:_________________________________
Authorized Officer
A-2-5
<PAGE>
CERTIFICATE OF AUTHENTICATION
This is one of the Class A-1B Certificates referred to in the
within-mentioned Agreement.
Dated:
LaSalle National Bank,
as Certificate Registrar
By:_________________________________
Authorized Officer
A-2-6
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(please print or typewrite name and address
including postal zip code of assignee)
the beneficial ownership interest in the Trust Fund evidenced by the within
Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage
Pass-Through Certificate of a like Percentage Interest and Class to the above
named assignee and delivery of such Commercial Mortgage Pass-Through Certificate
to the following address:
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Dated:____________
-------------------------------------
Signature by or on behalf of Assignor
-------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise,
in immediately available funds, to________________________________ for the
account of________________________________________________________________.
Distributions made by check (such check to be made payable to
____________________) and all applicable statements and notices should be mailed
to__________________________________________.
This information is provided by ___________________________, the assignee
named above, or ____________________________________, as its agent.
A-2-7
<PAGE>
EXHIBIT A-3
FORM OF CLASS A-1C CERTIFICATE
CLASS A-1C COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 1997-C1
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool (the "Mortgage Pool") of multifamily and
commercial mortgage loans (the "Mortgage Loans"), such pool being formed and
sold by
MORGAN STANLEY CAPITAL I INC.
<TABLE>
<S> <C>
Pass-Through Rate: Certificate Principal Balance of this Variable
7.6300% per annum Class A-1C Certificate as of the
Issue Date: $______________
Date of Pooling and Servicing Class Principal Balance of all the Class
Agreement: March 1, 1997 A-1C Certificates as of the Issue Date:
$139,496,000
Cut-off Date: March 1, 1997 Aggregate unpaid principal balance of the
Issue Date: March 26, 1997 Mortgage Pool as of the Cut-off Date, after
deducting payments of principal due on or before
such date, whether or not received: $640,657,923
First Distribution Date:
April 15, 1997
Master Servicer and Special Servicer: Trustee: LaSalle National Bank
GMAC Commercial Mortgage Corporation CUSIP No.: 61745M AG 8
Certificate No. A-1C-__
</TABLE>
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR, THE
TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
A-3-1
<PAGE>
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN MORGAN
STANLEY CAPITAL I INC., GMAC COMMERCIAL MORTGAGE CORPORATION, LASALLE NATIONAL
BANK, ABN AMRO BANK N.V. OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH HEREIN. IN ADDITION, FOLLOWING THE
DATE ON WHICH THE AGGREGATE CERTIFICATE PRINCIPAL BALANCE OF THE CLASS B, CLASS
C, CLASS D, CLASS E, CLASS F, CLASS G, CLASS H AND CLASS J CERTIFICATES OF THE
SAME SERIES IS REDUCED TO ZERO, THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE REDUCED IN CONNECTION WITH LOSSES ON THE MORTGAGE LOANS AND
CERTAIN UNANTICIPATED EXPENSES. ACCORDINGLY, THE OUTSTANDING CERTIFICATE
PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE.
This certifies that _______________________________________ is the
registered owner of the Percentage Interest evidenced by this Class A-1C
Certificate (obtained by dividing the principal balance of this Class A-1C
Certificate (its "Certificate Principal Balance") as of the Issue Date by the
aggregate principal balance of all the Class A-1C Certificates (their "Class
Principal Balance") as of the Issue Date) in that certain beneficial ownership
interest, evidenced by all the Class A-1C Certificates, in the Trust Fund
created pursuant to a Pooling and Servicing Agreement, dated as specified above
(the "Agreement"), between 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, the capitalized terms used herein have the
respective meanings assigned in the Agreement. This Certificate is issued under
and is subject to the terms, provisions and conditions of the Agreement, to
which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on the
15th day of each month or, if such 15th day is not a Business Day, the Business
Day immediately following (each, a "Distribution Date"), commencing on the First
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"), in an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed to the Holders of the
Class A-1C Certificates on the applicable
A-3-2
<PAGE>
Distribution Date pursuant to the Agreement. All distributions made under the
Agreement on any Class A-1C Certificate will be made by the Trustee by wire
transfer in immediately available funds to the account of the Person entitled
thereto at a bank or other entity having appropriate facilities therefor, if
such Certificateholder shall have provided the Trustee with wiring instructions
on or prior to the Record Date for such distribution (which wiring instructions
may be in the form of a standing order applicable to all subsequent
distributions as well) or otherwise by check mailed to the address of such
Certificateholder appearing in the Certificate Register. Notwithstanding the
above, the final distribution on this Certificate (determined without regard to
any possible future reimbursement of any Realized Loss or Expense Loss
previously allocated to this Certificate) will be made after due notice by the
Trustee of the pendency of such distribution and only upon presentation and
surrender of this Certificate at the offices of the Certificate Registrar
appointed as provided in the Agreement or such other location as may be
specified in such notice. Also notwithstanding the foregoing, any distribution
that may be made with respect to this Certificate in reimbursement of any
Realized Loss or Expense Loss previously allocated to this Certificate, which
reimbursement is to occur after the date on which this Certificate is
surrendered as contemplated by the preceding sentence, will be made by check
mailed to the address of the Holder that surrenders this Certificate as such
address last appeared in the Certificate Register or to any such other address
of which the Trustee is subsequently notified in writing.
Any distribution to the Holder of this Certificate in reduction of the
Certificate Principal Balance hereof is binding on such Holder and all future
Holders of this Certificate and any Certificate issued upon the transfer hereof
or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Depositor's Mortgage Pass-Through Certificates, Series 1997-C1 (the
"Certificates") are limited in right of distribution to certain collections and
recoveries respecting the Mortgage Loans, all as more specifically set forth
herein and in the Agreement. As provided in the Agreement, withdrawals from the
Collection Account and the Distribution Account may be made from time to time
for purposes other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
The Class A-1C Certificates are issuable in fully registered form only,
without coupons, in minimum denominations specified in the Agreement. As
provided in the Agreement and subject to certain limitations therein set forth,
Class A-1C Certificates are exchangeable for new Class A-1C Certificates in
authorized denominations evidencing the same aggregate Percentage Interest, as
requested by the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
A-3-3
<PAGE>
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Class A-1C Certificates in authorized
denominations evidencing the same aggregate Percentage Interest will be issued
to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer or
exchange of Class A-1C Certificates, but the Trustee or the Certificate
Registrar may require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any transfer or
exchange of Class A-1C Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
Prior to due presentment of this Certificate for registration of transfer,
the Depositor, the Master Servicer, the Special Servicer, the Trustee, the
Fiscal Agent, the Certificate Registrar and any agents 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 or any such
agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall terminate
upon distribution (or provision for distribution) to the Certificateholders of
all amounts held by or on behalf of the Trustee and required to be distributed
to them pursuant to the Agreement following the earlier of (i) the final payment
or other liquidation (or any advance with respect thereto) of the last Mortgage
Loan or REO Property remaining in the Trust Fund, and (ii) the purchase by the
Depositor, the Master Servicer, the Special Servicer or the Holders of Class R-I
Certificates representing a majority Percentage Interest in such Class, at a
price determined as provided in the Agreement, of all Mortgage Loans and any REO
Properties remaining in the Trust Fund. The Agreement permits, but does not
require, the Depositor, the Master Servicer, or such Holders to purchase from
the Trust Fund all Mortgage Loans and any REO Properties remaining therein at
such time as the aggregate Stated Principal Balance of the Mortgage Pool is less
than 3% of the aggregate Cut-off Date Principal Balance of the Mortgage Pool
specified on the face hereof. The exercise of such right will effect early
retirement of the Certificates.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer, the Trustee and the Fiscal
Agent thereunder and the rights of the Certificateholders thereunder, at any
time by the Depositor, the Master Servicer, the Special Servicer, the Trustee
and the Fiscal Agent with the consent of the Holders of Certificates entitled to
at least 51% of the Voting Rights allocated to the affected Classes. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
A-3-4
<PAGE>
The Agreement also permits the amendment thereof, in certain circumstances,
including any amendment necessary to maintain the status of REMIC I, REMIC II or
REMIC III as a REMIC, without the consent of the Holders of any of the
Certificates.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it will
look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal laws of
the State of New York applicable to agreements made and to be performed in said
State, and the obligations, rights and remedies of the Holder hereof shall be
determined in accordance with such laws.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
LaSalle National Bank,
as Trustee
By:_________________________________
Authorized Officer
A-3-5
<PAGE>
CERTIFICATE OF AUTHENTICATION
This is one of the Class A-1C Certificates referred to in the
within-mentioned Agreement.
Dated:
LaSalle National Bank,
as Certificate Registrar
By:_________________________________
Authorized Officer
A-3-6
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(please print or typewrite name and address
including postal zip code of assignee)
the beneficial ownership interest in the Trust Fund evidenced by the within
Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage
Pass-Through Certificate of a like Percentage Interest and Class to the above
named assignee and delivery of such Commercial Mortgage Pass-Through Certificate
to the following address:
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
Dated:____________
-------------------------------------
Signature by or on behalf of Assignor
-------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise,
in immediately available funds, to________________________________ for the
account of________________________________________________________________.
Distributions made by check (such check to be made payable to
____________________) and all applicable statements and notices should be mailed
to__________________________________________.
This information is provided by ___________________________, the assignee
named above, or ____________________________________, as its agent.
A-3-7
<PAGE>
EXHIBIT A-4
FORM OF CLASS A-2 CERTIFICATE
CLASS A-2 COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 1997-C1
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool (the "Mortgage Pool") of multifamily and
commercial mortgage loans (the "Mortgage Loans"), such pool being formed and
sold by
MORGAN STANLEY CAPITAL I INC.
<TABLE>
<S> <C>
Pass-Through Rate: Variable Certificate Principal Balance of this Variable
Class A-2 Certificate as of the
Issue Date: $______________
Date of Pooling and Servicing Class Principal Balance of all the Class
Agreement: March 1, 1997 A-2 Certificates as of the Issue Date:
$38,248,484
Cut-off Date: March 1, 1997 Aggregate unpaid principal balance of the
Issue Date: March 26, 1997 Mortgage Pool as of the Cut-off Date, after
deducting payments of principal due on or before
such date, whether or not received: $640,657,923
First Distribution Date:
April 15, 1997
Master Servicer and Special Servicer: Trustee: LaSalle National Bank
GMAC Commercial Mortgage Corporation CUSIP No.: 61745M AH 6
Certificate No. A-2-__
</TABLE>
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR, THE
TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
A-4-1
<PAGE>
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN MORGAN
STANLEY CAPITAL I INC., GMAC COMMERCIAL MORTGAGE CORPORATION, LASALLE NATIONAL
BANK, ABN AMRO BANK N.V. OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH HEREIN. IN ADDITION, FOLLOWING THE
DATE ON WHICH THE AGGREGATE CERTIFICATE PRINCIPAL BALANCE OF THE CLASS B, CLASS
C, CLASS D, CLASS E, CLASS F, CLASS G, CLASS H AND CLASS J CERTIFICATES OF THE
SAME SERIES IS REDUCED TO ZERO, THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE REDUCED IN CONNECTION WITH LOSSES ON THE MORTGAGE LOANS AND
CERTAIN UNANTICIPATED EXPENSES. ACCORDINGLY, THE OUTSTANDING CERTIFICATE
PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE.
This certifies that _______________________________________ is the
registered owner of the Percentage Interest evidenced by this Class A-2
Certificate (obtained by dividing the principal balance of this Class A-2
Certificate (its "Certificate Principal Balance") as of the Issue Date by the
aggregate principal balance of all the Class A-2 Certificates (their "Class
Principal Balance") as of the Issue Date) in that certain beneficial ownership
interest, evidenced by all the Class A-2 Certificates, in the Trust Fund created
pursuant to a Pooling and Servicing Agreement, dated as specified above (the
"Agreement"), between 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, the capitalized terms used herein have the
respective meanings assigned in the Agreement. This Certificate is issued under
and is subject to the terms, provisions and conditions of the Agreement, to
which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on the
15th day of each month or, if such 15th day is not a Business Day, the Business
Day immediately following (each, a "Distribution Date"), commencing on the First
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"), in an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed to the Holders of the
Class A-2 Certificates on the applicable
A-4-2
<PAGE>
Distribution Date pursuant to the Agreement. All distributions made under the
Agreement on any Class A-2 Certificate will be made by the Trustee by wire
transfer in immediately available funds to the account of the Person entitled
thereto at a bank or other entity having appropriate facilities therefor, if
such Certificateholder shall have provided the Trustee with wiring instructions
on or prior to the Record Date for such distribution (which wiring instructions
may be in the form of a standing order applicable to all subsequent
distributions as well) or otherwise by check mailed to the address of such
Certificateholder appearing in the Certificate Register. Notwithstanding the
above, the final distribution on this Certificate (determined without regard to
any possible future reimbursement of any Realized Loss or Expense Loss
previously allocated to this Certificate) will be made after due notice by the
Trustee of the pendency of such distribution and only upon presentation and
surrender of this Certificate at the offices of the Certificate Registrar
appointed as provided in the Agreement or such other location as may be
specified in such notice. Also notwithstanding the foregoing, any distribution
that may be made with respect to this Certificate in reimbursement of any
Realized Loss or Expense Loss previously allocated to this Certificate, which
reimbursement is to occur after the date on which this Certificate is
surrendered as contemplated by the preceding sentence, will be made by check
mailed to the address of the Holder that surrenders this Certificate as such
address last appeared in the Certificate Register or to any such other address
of which the Trustee is subsequently notified in writing.
Any distribution to the Holder of this Certificate in reduction of the
Certificate Principal Balance hereof is binding on such Holder and all future
Holders of this Certificate and any Certificate issued upon the transfer hereof
or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Depositor's Mortgage Pass-Through Certificates, Series 1997-C1 (the
"Certificates") are limited in right of distribution to certain collections and
recoveries respecting the Mortgage Loans, all as more specifically set forth
herein and in the Agreement. As provided in the Agreement, withdrawals from the
Collection Account and the Distribution Account may be made from time to time
for purposes other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
The Class A-2 Certificates are issuable in fully registered form only,
without coupons, in minimum denominations specified in the Agreement. As
provided in the Agreement and subject to certain limitations therein set forth,
Class A-2 Certificates are exchangeable for new Class A-2 Certificates in
authorized denominations evidencing the same aggregate Percentage Interest, as
requested by the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and
A-4-3
<PAGE>
thereupon one or more new Class A-2 Certificates in authorized denominations
evidencing the same aggregate Percentage Interest will be issued to the
designated transferee or transferees.
No service charge will be imposed for any registration of transfer or
exchange of Class A-2 Certificates, but the Trustee or the Certificate Registrar
may require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of Class
A-2 Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
Prior to due presentment of this Certificate for registration of transfer,
the Depositor, the Master Servicer, the Special Servicer, the Trustee, the
Fiscal Agent, the Certificate Registrar and any agents 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 or any such
agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall terminate
upon distribution (or provision for distribution) to the Certificateholders of
all amounts held by or on behalf of the Trustee and required to be distributed
to them pursuant to the Agreement following the earlier of (i) the final payment
or other liquidation (or any advance with respect thereto) of the last Mortgage
Loan or REO Property remaining in the Trust Fund, and (ii) the purchase by the
Depositor, the Master Servicer, the Special Servicer or the Holders of Class R-I
Certificates representing a majority Percentage Interest in such Class, at a
price determined as provided in the Agreement, of all Mortgage Loans and any REO
Properties remaining in the Trust Fund. The Agreement permits, but does not
require, the Depositor, the Master Servicer, or such Holders to purchase from
the Trust Fund all Mortgage Loans and any REO Properties remaining therein at
such time as the aggregate Stated Principal Balance of the Mortgage Pool is less
than 3% of the aggregate Cut-off Date Principal Balance of the Mortgage Pool
specified on the face hereof. The exercise of such right will effect early
retirement of the Certificates.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer, the Trustee and the Fiscal
Agent thereunder and the rights of the Certificateholders thereunder, at any
time by the Depositor, the Master Servicer, the Special Servicer, the Trustee
and the Fiscal Agent with the consent of the Holders of Certificates entitled to
at least 51% of the Voting Rights allocated to the affected Classes. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain circumstances,
including any
A-4-4
<PAGE>
amendment necessary to maintain the status of REMIC I, REMIC II or REMIC III as
a REMIC, without the consent of the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it will
look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal laws of
the State of New York applicable to agreements made and to be performed in said
State, and the obligations, rights and remedies of the Holder hereof shall be
determined in accordance with such laws.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
LaSalle National Bank,
as Trustee
By:_________________________________
Authorized Officer
A-4-5
<PAGE>
CERTIFICATE OF AUTHENTICATION
This is one of the Class A-2 Certificates referred to in the
within-mentioned Agreement.
Dated:
LaSalle National Bank,
as Trustee
By:_________________________________
Authorized Officer
A-4-6
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(please print or typewrite name and address
including postal zip code of assignee)
the beneficial ownership interest in the Trust Fund evidenced by the within
Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage
Pass-Through Certificate of a like Percentage Interest and Class to the above
named assignee and delivery of such Commercial Mortgage Pass-Through Certificate
to the following address:
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
Dated:____________
-------------------------------------
Signature by or on behalf of Assignor
-------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise,
in immediately available funds, to________________________________ for the
account of________________________________________________________________.
Distributions made by check (such check to be made payable to
____________________) and all applicable statements and notices should be mailed
to__________________________________________.
This information is provided by ___________________________, the assignee
named above, or ____________________________________, as its agent.
A-4-7
<PAGE>
EXHIBIT A-5
FORM OF CLASS B CERTIFICATE
CLASS B COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 1997-C1
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool (the "Mortgage Pool") of multifamily and
commercial mortgage loans (the "Mortgage Loans"), such pool being formed and
sold by
MORGAN STANLEY CAPITAL I INC.
<TABLE>
<S> <C>
Pass-Through Rate: Certificate Principal Balance of this
7.6900% per annum Class B Certificate as of the
Issue Date: $______________
Date of Pooling and Servicing Class Principal Balance of all the Class B
Agreement: March 1, 1997 Certificates as of the Issue Date:
$51,252,000
Cut-off Date: March 1, 1997 Aggregate unpaid principal balance of the
Issue Date: March 26, 1997 Mortgage Pool as of the Cut-off Date, after
deducting payments of principal due on or before
such date, whether or not received: $640,657,923
First Distribution Date:
April 15, 1997
Master Servicer and Special Servicer: Trustee: LaSalle National Bank
GMAC Commercial Mortgage Corporation CUSIP No.: 61745M AL 7
Certificate No. B-__
</TABLE>
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR, THE
TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
A-5-1
<PAGE>
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN MORGAN
STANLEY CAPITAL I INC., GMAC COMMERCIAL MORTGAGE CORPORATION, LASALLE NATIONAL
BANK, ABN AMRO BANK N.V. OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1A, CLASS A-1B, CLASS A-1C, CLASS
A-2, CLASS IO-1 AND CLASS IO-2 CERTIFICATES OF THE SAME SERIES, AS AND TO THE
EXTENT PROVIDED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN TO AN EMPLOYEE BENEFIT
PLAN OR OTHER RETIREMENT ARRANGEMENT SUBJECT TO THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR THE INTERNAL REVENUE CODE OF 1986
(THE "CODE"), OR TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS
CERTIFICATE OR ANY INTEREST HEREIN ON BEHALF OF, AS NAMED FIDUCIARY OF, AS
TRUSTEE OF, OR WITH ASSETS OF ANY SUCH EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT, WILL BE REGISTERED EXCEPT IN COMPLIANCE WITH THE PROCEDURES
DESCRIBED HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH HEREIN FOLLOWING RETIREMENT OF THE
CLASS A-1A, CLASS A-1B, CLASS A-1C AND CLASS A-2 CERTIFICATES OF THE SAME
SERIES. IN ADDITION, FOLLOWING THE DATE ON WHICH THE AGGREGATE CERTIFICATE
PRINCIPAL BALANCE OF THE CLASS C, CLASS D, CLASS E, CLASS F, CLASS G, CLASS H
AND CLASS J CERTIFICATES OF THE SAME SERIES IS REDUCED TO ZERO, THE CERTIFICATE
PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE REDUCED IN CONNECTION WITH LOSSES
ON THE MORTGAGE LOANS AND CERTAIN UNANTICIPATED EXPENSES. ACCORDINGLY, THE
OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN
THE AMOUNT SHOWN ABOVE.
This certifies that _______________________________________ is the
registered owner of the Percentage Interest evidenced by this Class B
Certificate (obtained by dividing the principal balance of this Class B
Certificate (its "Certificate Principal Balance") as of the Issue Date by the
aggregate principal balance of all the Class B Certificates (their "Class
Principal
A-5-2
<PAGE>
Balance") as of the Issue Date) in that certain beneficial ownership interest,
evidenced by all the Class B Certificates, in the Trust Fund created pursuant to
a Pooling and Servicing Agreement, dated as specified above (the "Agreement"),
between 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, the capitalized terms used herein have the respective meanings assigned
in the Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on the
15th day of each month or, if such 15th day is not a Business Day, the Business
Day immediately following (each, a "Distribution Date"), commencing on the First
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"), in an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed to the Holders of the
Class B Certificates on the applicable Distribution Date pursuant to the
Agreement. All distributions made under the Agreement on any Class B Certificate
will be made by the Trustee by wire transfer in immediately available funds to
the account of the Person entitled thereto at a bank or other entity having
appropriate facilities therefor, if such Certificateholder shall have provided
the Trustee with wiring instructions on or prior to the Record Date for such
distribution (which wiring instructions may be in the form of a standing order
applicable to all subsequent distributions as well) or otherwise by check mailed
to the address of such Certificateholder appearing in the Certificate Register.
Notwithstanding the above, the final distribution on this Certificate
(determined without regard to any possible future reimbursement of any Realized
Loss or Expense Loss previously allocated to this Certificate) will be made
after due notice by the Trustee of the pendency of such distribution and only
upon presentation and surrender of this Certificate at the offices of the
Certificate Registrar appointed as provided in the Agreement or such other
location as may be specified in such notice. Also notwithstanding the foregoing,
any distribution that may be made with respect to this Certificate in
reimbursement of any Realized Loss or Expense Loss previously allocated to this
Certificate, which reimbursement is to occur after the date on which this
Certificate is surrendered as contemplated by the preceding sentence, will be
made by check mailed to the address of the Holder that surrenders this
Certificate as such address last appeared in the Certificate Register or to any
such other address of which the Trustee is subsequently notified in writing.
Any distribution to the Holder of this Certificate in reduction of the
Certificate Principal Balance hereof is binding on such Holder and all future
Holders of this Certificate and any Certificate issued upon the transfer hereof
or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Depositor's Mortgage Pass-Through Certificates, Series 1997-C1 (the
"Certificates") are limited in right of distribution to certain collections and
recoveries respecting the Mortgage Loans, all as more specifically set forth
herein and in the Agreement. As provided
A-5-3
<PAGE>
in the Agreement, withdrawals from the Collection Account and the Distribution
Account may be made from time to time for purposes other than, and, in certain
cases, prior to, distributions to Certificateholders, such purposes including
the reimbursement of advances made, or certain expenses incurred, with respect
to the Mortgage Loans and the payment of interest on such advances and expenses.
The Class B Certificates are issuable in fully registered form only,
without coupons, in minimum denominations specified in the Agreement. As
provided in the Agreement and subject to certain limitations therein set forth,
Class B Certificates are exchangeable for new Class B Certificates in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Class B Certificates in authorized
denominations evidencing the same aggregate Percentage Interest will be issued
to the designated transferee or transferees.
No transfer of a Class B Certificate or any interest therein shall be made
(A) to any employee benefit plan or other retirement arrangement, including
individual retirement accounts and annuities, Keogh plans and collective
investment funds and separate accounts in which such plans, accounts or
arrangements are invested, including, without limitation, insurance company
general accounts, that is subject to ERISA or the Code (each, a "Plan"), or (B)
to any Person who is directly or indirectly purchasing such Certificate or
interest therein on behalf of, as named fiduciary of, as trustee of, or with
assets of a Plan, unless: (i) in the case of a Certificate that constitutes a
Book-Entry Certificate, the purchase and holding of such Certificate or interest
therein is exempt from the prohibited transaction provisions of Section 406 of
ERISA and Section 4975 of the Code under Section I and III of Prohibited
Transaction Class Exemption 95-60; or (ii) in the case of a Class B Certificate
that is held as a Definitive Certificate, the prospective Transferee provides
the Certificate Registrar with a certification of facts and an Opinion of
Counsel which establish to the satisfaction of the Trustee that such transfer
will not result in a violation of Section 406 of ERISA or Section 4975 of the
Code or result in the imposition of an excise tax under Section 4975 of the Code
or subject the Depositor, the Trustee, the Fiscal Agent, the Master Servicer or
the Special Servicer to any obligation in addition to those undertaken in the
Agreement. Each Person who acquires any Class B Certificate or interest therein
(unless it shall have acquired such Certificate or interest therein from the
Depositor or an Affiliate thereof or unless it shall have delivered to the
Certificate Registrar the certification of facts and Opinion of Counsel referred
to in clause (ii) of the preceding sentence) shall be required to deliver to the
Certificate Registrar (or, in the case of an interest in a Book-Entry
Certificate, to the Certificate Owner that is transferring such interest) a
certification to the effect that: (i) it is neither a Plan nor any Person who is
directly or indirectly purchasing such Class B Certificate or interest therein
on behalf of, as named fiduciary of, as trustee of, or with assets of a Plan; or
(ii) the purchase and
A-5-4
<PAGE>
holding of such Certificate or interest therein by such person is exempt from
the prohibited transaction provisions of Section 406 of ERISA and Section 4975
of the Code under Section I and II of Prohibited Transaction Class Exemption
95-60.
No service charge will be imposed for any registration of transfer or
exchange of Class B Certificates, but the Trustee or the Certificate Registrar
may require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of Class
B Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
Prior to due presentment of this Certificate for registration of transfer,
the Depositor, the Master Servicer, the Special Servicer, the Trustee, the
Fiscal Agent, the Certificate Registrar and any agents 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 or any such
agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall terminate
upon distribution (or provision for distribution) to the Certificateholders of
all amounts held by or on behalf of the Trustee and required to be distributed
to them pursuant to the Agreement following the earlier of (i) the final payment
or other liquidation (or any advance with respect thereto) of the last Mortgage
Loan or REO Property remaining in the Trust Fund, and (ii) the purchase by the
Depositor, the Master Servicer, the Special Servicer or the Holders of Class R-I
Certificates representing a majority Percentage Interest in such Class, at a
price determined as provided in the Agreement, of all Mortgage Loans and any REO
Properties remaining in the Trust Fund. The Agreement permits, but does not
require, the Depositor, the Master Servicer, or such Holders to purchase from
the Trust Fund all Mortgage Loans and any REO Properties remaining therein at
such time as the aggregate Stated Principal Balance of the Mortgage Pool is less
than 3% of the aggregate Cut-off Date Principal Balance of the Mortgage Pool
specified on the face hereof. The exercise of such right will effect early
retirement of the Certificates.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer, the Trustee and the Fiscal
Agent thereunder and the rights of the Certificateholders thereunder, at any
time by the Depositor, the Master Servicer, the Special Servicer, the Trustee
and the Fiscal Agent with the consent of the Holders of Certificates entitled to
at least 51% of the Voting Rights allocated to the affected Classes. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
A-5-5
<PAGE>
The Agreement also permits the amendment thereof, in certain circumstances,
including any amendment necessary to maintain the status of REMIC I, REMIC II or
REMIC III as a REMIC, without the consent of the Holders of any of the
Certificates.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it will
look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal laws of
the State of New York applicable to agreements made and to be performed in said
State, and the obligations, rights and remedies of the Holder hereof shall be
determined in accordance with such laws.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
LaSalle National Bank,
as Trustee
By:_________________________________
Authorized Officer
A-5-6
<PAGE>
CERTIFICATE OF AUTHENTICATION
This is one of the Class B Certificates referred to in the within-mentioned
Agreement.
Dated:
LaSalle National Bank,
as Certificate Registrar
By:_________________________________
Authorized Officer
A-5-7
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(please print or typewrite name and address
including postal zip code of assignee)
the beneficial ownership interest in the Trust Fund evidenced by the within
Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the issuance of a new Commercial
Mortgage Pass-Through Certificate of a like Percentage Interest and Class to the
above named assignee and delivery of such Commercial Mortgage Pass-Through
Certificate to the following address:
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
Dated:____________
-------------------------------------
Signature by or on behalf of Assignor
-------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise,
in immediately available funds, to _____________________________________ for the
account of ________________________________________________________________ .
Distributions made by check (such check to be made payable to
___________________________) and all applicable statements and notices should be
mailed to _____________________________________________________________________
This information is provided by ______________________________, the
assignee named above, or _______________________________________________, as its
agent.
A-5-8
<PAGE>
EXHIBIT A-6
FORM OF CLASS C CERTIFICATE
CLASS C COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 1997-C1
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool (the "Mortgage Pool") of multifamily and
commercial mortgage loans (the "Mortgage Loans"), such pool being formed and
sold by
MORGAN STANLEY CAPITAL I INC.
<TABLE>
<S> <C>
Pass-Through Rate: Certificate Principal Balance of this
7.7900% per annum Class C Certificate as of the
Issue Date: $______________
Date of Pooling and Servicing Class Principal Balance of all the Class C
Agreement: March 1, 1997 Certificates as of the Issue Date:
$38,439,000
Cut-off Date: March 1, 1997 Aggregate unpaid principal balance of the
Issue Date: March 26, 1997 Mortgage Pool as of the Cut-off Date, after
deducting payments of principal due on or before
such date, whether or not received: $640,657,923
First Distribution Date:
April 15, 1997
Master Servicer and Special Servicer: Trustee: LaSalle National Bank
GMAC Commercial Mortgage Corporation CUSIP No.: 61745M AM 5
Certificate No. C-__
</TABLE>
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR, THE
TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
A-6-1
<PAGE>
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN MORGAN
STANLEY CAPITAL I INC., GMAC COMMERCIAL MORTGAGE CORPORATION, LASALLE NATIONAL
BANK, ABN AMRO BANK N.V. OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1A, CLASS A-1B, CLASS A-1C, CLASS
A-2, CLASS IO-1, CLASS IO-2 AND CLASS B CERTIFICATES OF THE SAME SERIES, AS AND
TO THE EXTENT PROVIDED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN TO AN EMPLOYEE BENEFIT
PLAN OR OTHER RETIREMENT ARRANGEMENT SUBJECT TO THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR THE INTERNAL REVENUE CODE OF 1986
(THE "CODE"), OR TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS
CERTIFICATE OR ANY INTEREST HEREIN ON BEHALF OF, AS NAMED FIDUCIARY OF, AS
TRUSTEE OF, OR WITH ASSETS OF ANY SUCH EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT, WILL BE REGISTERED EXCEPT IN COMPLIANCE WITH THE PROCEDURES
DESCRIBED HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH HEREIN FOLLOWING RETIREMENT OF THE
CLASS A-1A, CLASS A-1B, CLASS A-1C, CLASS A-2 AND CLASS B CERTIFICATES OF THE
SAME SERIES. IN ADDITION, FOLLOWING THE DATE ON WHICH THE AGGREGATE CERTIFICATE
PRINCIPAL BALANCE OF THE CLASS D, CLASS E, CLASS F, CLASS G, CLASS H AND CLASS J
CERTIFICATES OF THE SAME SERIES IS REDUCED TO ZERO, THE CERTIFICATE PRINCIPAL
BALANCE OF THIS CERTIFICATE MAY BE REDUCED IN CONNECTION WITH LOSSES ON THE
MORTGAGE LOANS AND CERTAIN UNANTICIPATED EXPENSES. ACCORDINGLY, THE OUTSTANDING
CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT
SHOWN ABOVE.
This certifies that _______________________________________ is the
registered owner of the Percentage Interest evidenced by this Class C
Certificate (obtained by dividing the principal balance of this Class C
Certificate (its "Certificate Principal Balance") as of the Issue Date by the
aggregate principal balance of all the Class C Certificates (their "Class
Principal
A-6-2
<PAGE>
Balance") as of the Issue Date) in that certain beneficial ownership interest,
evidenced by all the Class C Certificates, in the Trust Fund created pursuant to
a Pooling and Servicing Agreement, dated as specified above (the "Agreement"),
between 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, the capitalized terms used herein have the respective meanings assigned
in the Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on the
15th day of each month or, if such 15th day is not a Business Day, the Business
Day immediately following (each, a "Distribution Date"), commencing on the First
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"), in an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed to the Holders of the
Class C Certificates on the applicable Distribution Date pursuant to the
Agreement. All distributions made under the Agreement on any Class C Certificate
will be made by the Trustee by wire transfer in immediately available funds to
the account of the Person entitled thereto at a bank or other entity having
appropriate facilities therefor, if such Certificateholder shall have provided
the Trustee with wiring instructions on or prior to the Record Date for such
distribution (which wiring instructions may be in the form of a standing order
applicable to all subsequent distributions as well) or otherwise by check mailed
to the address of such Certificateholder appearing in the Certificate Register.
Notwithstanding the above, the final distribution on this Certificate
(determined without regard to any possible future reimbursement of any Realized
Loss or Expense Loss previously allocated to this Certificate) will be made
after due notice by the Trustee of the pendency of such distribution and only
upon presentation and surrender of this Certificate at the offices of the
Certificate Registrar appointed as provided in the Agreement or such other
location as may be specified in such notice. Also notwithstanding the foregoing,
any distribution that may be made with respect to this Certificate in
reimbursement of any Realized Loss or Expense Loss previously allocated to this
Certificate, which reimbursement is to occur after the date on which this
Certificate is surrendered as contemplated by the preceding sentence, will be
made by check mailed to the address of the Holder that surrenders this
Certificate as such address last appeared in the Certificate Register or to any
such other address of which the Trustee is subsequently notified in writing.
Any distribution to the Holder of this Certificate in reduction of the
Certificate Principal Balance hereof is binding on such Holder and all future
Holders of this Certificate and any Certificate issued upon the transfer hereof
or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Depositor's Mortgage Pass-Through Certificates, Series 1997-C1 (the
"Certificates") are limited in right of distribution to certain collections and
recoveries respecting the Mortgage Loans, all as more specifically set forth
herein and in the Agreement. As provided
A-6-3
<PAGE>
in the Agreement, withdrawals from the Collection Account and the Distribution
Account may be made from time to time for purposes other than, and, in certain
cases, prior to, distributions to Certificateholders, such purposes including
the reimbursement of advances made, or certain expenses incurred, with respect
to the Mortgage Loans and the payment of interest on such advances and expenses.
The Class C Certificates are issuable in fully registered form only,
without coupons, in minimum denominations specified in the Agreement. As
provided in the Agreement and subject to certain limitations therein set forth,
Class C Certificates are exchangeable for new Class C Certificates in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Class C Certificates in authorized
denominations evidencing the same aggregate Percentage Interest will be issued
to the designated transferee or transferees.
No transfer of a Class C Certificate or any interest therein shall be made
(A) to any employee benefit plan or other retirement arrangement, including
individual retirement accounts and annuities, Keogh plans and collective
investment funds and separate accounts in which such plans, accounts or
arrangements are invested, including, without limitation, insurance company
general accounts, that is subject to ERISA or the Code (each, a "Plan"), or (B)
to any Person who is directly or indirectly purchasing such Certificate or
interest therein on behalf of, as named fiduciary of, as trustee of, or with
assets of a Plan, unless: (i) in the case of a Certificate that constitutes a
Book-Entry Certificate, the purchase and holding of such Certificate or interest
therein is exempt from the prohibited transaction provisions of Section 406 of
ERISA and Section 4975 of the Code under Section I and III of Prohibited
Transaction Class Exemption 95-60; or (ii) in the case of a Class C Certificate
that is held as a Definitive Certificate, the prospective Transferee provides
the Certificate Registrar with a certification of facts and an Opinion of
Counsel which establish to the satisfaction of the Trustee that such transfer
will not result in a violation of Section 406 of ERISA or Section 4975 of the
Code or result in the imposition of an excise tax under Section 4975 of the Code
or subject the Depositor, the Trustee, the Fiscal Agent, the Master Servicer or
the Special Servicer to any obligation in addition to those undertaken in the
Agreement. Each Person who acquires any Class C Certificate or interest therein
(unless it shall have acquired such Certificate or interest therein from the
Depositor or an Affiliate thereof or unless it shall have delivered to the
Certificate Registrar the certification of facts and Opinion of Counsel referred
to clause (ii) of in the preceding sentence) shall be required to deliver to the
Certificate Registrar (or, in the case of an interest in a Book-Entry
Certificate, to the Certificate Owner that is transferring such interest) a
certification to the effect that: (i) it is neither a Plan nor any Person who is
directly or indirectly purchasing such Class C Certificate or interest therein
on behalf of, as named fiduciary of, as trustee of, or with assets of a Plan; or
(ii) the purchase and
A-6-4
<PAGE>
holding of such Certificate or interest therein by such person is exempt from
the prohibited transaction provisions of Section 406 of ERISA and Section 4975
of the Code under Section I and II of Prohibited Transaction Class Exemption
95-60.
No service charge will be imposed for any registration of transfer or
exchange of Class C Certificates, but the Trustee or the Certificate Registrar
may require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of Class
C Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
Prior to due presentment of this Certificate for registration of transfer,
the Depositor, the Master Servicer, the Special Servicer, the Trustee, the
Fiscal Agent, the Certificate Registrar and any agents 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 or any such
agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall terminate
upon distribution (or provision for distribution) to the Certificateholders of
all amounts held by or on behalf of the Trustee and required to be distributed
to them pursuant to the Agreement following the earlier of (i) the final payment
or other liquidation (or any advance with respect thereto) of the last Mortgage
Loan or REO Property remaining in the Trust Fund, and (ii) the purchase by the
Depositor, the Master Servicer, the Special Servicer or the Holders of Class R-I
Certificates representing a majority Percentage Interest in such Class, at a
price determined as provided in the Agreement, of all Mortgage Loans and any REO
Properties remaining in the Trust Fund. The Agreement permits, but does not
require, the Depositor, the Master Servicer, or such Holders to purchase from
the Trust Fund all Mortgage Loans and any REO Properties remaining therein at
such time as the aggregate Stated Principal Balance of the Mortgage Pool is less
than 3% of the aggregate Cut-off Date Principal Balance of the Mortgage Pool
specified on the face hereof. The exercise of such right will effect early
retirement of the Certificates.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer, the Trustee and the Fiscal
Agent thereunder and the rights of the Certificateholders thereunder, at any
time by the Depositor, the Master Servicer, the Special Servicer, the Trustee
and the Fiscal Agent with the consent of the Holders of Certificates entitled to
at least 51% of the Voting Rights allocated to the affected Classes. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
A-6-5
<PAGE>
The Agreement also permits the amendment thereof, in certain circumstances,
including any amendment necessary to maintain the status of REMIC I, REMIC II or
REMIC III as a REMIC, without the consent of the Holders of any of the
Certificates.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it will
look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal laws of
the State of New York applicable to agreements made and to be performed in said
State, and the obligations, rights and remedies of the Holder hereof shall be
determined in accordance with such laws.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
LaSalle National Bank,
as Trustee
By:_________________________________
Authorized Officer
A-6-6
<PAGE>
CERTIFICATE OF AUTHENTICATION
This is one of the Class C Certificates referred to in the within-mentioned
Agreement.
Dated:
LaSalle National Bank,
as Certificate Registrar
By:_________________________________
Authorized Officer
A-6-7
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(please print or typewrite name and address
including postal zip code of assignee)
the beneficial ownership interest in the Trust Fund evidenced by the within
Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the issuance of a new Commercial
Mortgage Pass-Through Certificate of a like Percentage Interest and Class to the
above named assignee and delivery of such Commercial Mortgage Pass-Through
Certificate to the following address:
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
Dated:____________
-------------------------------------
Signature by or on behalf of Assignor
-------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise,
in immediately available funds, to ________________________________________ for
the account of _____________________________________________________.
Distributions made by check (such check to be made payable to
____________________________) and all applicable statements and notices should
be mailed to__________________________________________________________.
This information is provided by _________________________________, the
assignee named above, or ______________________________________________, as its
agent.
A-6-8
<PAGE>
EXHIBIT A-7
FORM OF CLASS D CERTIFICATE
CLASS D COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 1997-C1
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool (the "Mortgage Pool") of multifamily and
commercial mortgage loans (the "Mortgage Loans"), such pool being formed and
sold by
MORGAN STANLEY CAPITAL I INC.
<TABLE>
<S> <C>
Pass-Through Rate: Certificate Principal Balance of this Variable
7.8500% per annum Class D Certificate as of the
Issue Date: $______________
Date of Pooling and Servicing Class Principal Balance of all the Class D
Agreement: March 1, 1997 Certificates as of the Issue Date:
$35,236,000
Cut-off Date: March 1, 1997 Aggregate unpaid principal balance of the
Issue Date: March 26, 1997 Mortgage Pool as of the Cut-off Date, after
deducting payments of principal due on or before
such date, whether or not received: $640,657,923
First Distribution Date:
April 15, 1997
Master Servicer and Special Servicer: Trustee: LaSalle National Bank
GMAC Commercial Mortgage Corporation CUSIP No.: 61745M AN 3
Certificate No. D-__
</TABLE>
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR, THE
TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
A-7-1
<PAGE>
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN MORGAN
STANLEY CAPITAL I INC., GMAC COMMERCIAL MORTGAGE CORPORATION, LASALLE NATIONAL
BANK, ABN AMRO BANK N.V. OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1A, CLASS A-1B, CLASS A-1C, CLASS
A-2, CLASS IO-1, CLASS IO-2, CLASS B AND CLASS C CERTIFICATES OF THE SAME
SERIES, AS AND TO THE EXTENT PROVIDED IN THE POOLING AND SERVICING AGREEMENT
REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN TO AN EMPLOYEE BENEFIT
PLAN OR OTHER RETIREMENT ARRANGEMENT SUBJECT TO THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR THE INTERNAL REVENUE CODE OF 1986
(THE "CODE"), OR TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS
CERTIFICATE OR ANY INTEREST HEREIN ON BEHALF OF, AS NAMED FIDUCIARY OF, AS
TRUSTEE OF, OR WITH ASSETS OF ANY SUCH EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT, WILL BE REGISTERED EXCEPT IN COMPLIANCE WITH THE PROCEDURES
DESCRIBED HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH HEREIN FOLLOWING RETIREMENT OF THE
CLASS A-1A, CLASS A-1B, CLASS A-1C, CLASS A-2, CLASS B AND CLASS C CERTIFICATES
OF THE SAME SERIES. IN ADDITION, FOLLOWING THE DATE ON WHICH THE AGGREGATE
CERTIFICATE PRINCIPAL BALANCE OF THE CLASS E, CLASS F, CLASS G, CLASS H AND
CLASS J CERTIFICATES OF THE SAME SERIES IS REDUCED TO ZERO, THE CERTIFICATE
PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE REDUCED IN CONNECTION WITH LOSSES
ON THE MORTGAGE LOANS AND CERTAIN UNANTICIPATED EXPENSES. ACCORDINGLY, THE
OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN
THE AMOUNT SHOWN ABOVE.
This certifies that _______________________________________ is the
registered owner of the Percentage Interest evidenced by this Class D
Certificate (obtained by dividing the principal balance of this Class D
Certificate (its "Certificate Principal Balance") as of the Issue Date by the
aggregate principal balance of all the Class D Certificates (their "Class
Principal
A-7-2
<PAGE>
Balance") as of the Issue Date) in that certain beneficial ownership interest,
evidenced by all the Class D Certificates, in the Trust Fund created pursuant to
a Pooling and Servicing Agreement, dated as specified above (the "Agreement"),
between 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, the capitalized terms used herein have the respective meanings assigned
in the Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on the
15th day of each month or, if such 15th day is not a Business Day, the Business
Day immediately following (each, a "Distribution Date"), commencing on the First
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"), in an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed to the Holders of the
Class D Certificates on the applicable Distribution Date pursuant to the
Agreement. All distributions made under the Agreement on any Class D Certificate
will be made by the Trustee by wire transfer in immediately available funds to
the account of the Person entitled thereto at a bank or other entity having
appropriate facilities therefor, if such Certificateholder shall have provided
the Trustee with wiring instructions on or prior to the Record Date for such
distribution (which wiring instructions may be in the form of a standing order
applicable to all subsequent distributions as well) or otherwise by check mailed
to the address of such Certificateholder appearing in the Certificate Register.
Notwithstanding the above, the final distribution on this Certificate
(determined without regard to any possible future reimbursement of any Realized
Loss or Expense Loss previously allocated to this Certificate) will be made
after due notice by the Trustee of the pendency of such distribution and only
upon presentation and surrender of this Certificate at the offices of the
Certificate Registrar appointed as provided in the Agreement or such other
location as may be specified in such notice. Also notwithstanding the foregoing,
any distribution that may be made with respect to this Certificate in
reimbursement of any Realized Loss or Expense Loss previously allocated to this
Certificate, which reimbursement is to occur after the date on which this
Certificate is surrendered as contemplated by the preceding sentence, will be
made by check mailed to the address of the Holder that surrenders this
Certificate as such address last appeared in the Certificate Register or to any
such other address of which the Trustee is subsequently notified in writing.
Any distribution to the Holder of this Certificate in reduction of the
Certificate Principal Balance hereof is binding on such Holder and all future
Holders of this Certificate and any Certificate issued upon the transfer hereof
or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Depositor's Mortgage Pass-Through Certificates, Series 1997-C1 (the
"Certificates") are limited in right of distribution to certain collections and
recoveries respecting the Mortgage Loans, all as more specifically set forth
herein and in the Agreement. As provided
A-7-3
<PAGE>
in the Agreement, withdrawals from the Collection Account and the Distribution
Account may be made from time to time for purposes other than, and, in certain
cases, prior to, distributions to Certificateholders, such purposes including
the reimbursement of advances made, or certain expenses incurred, with respect
to the Mortgage Loans and the payment of interest on such advances and expenses.
The Class D Certificates are issuable in fully registered form only,
without coupons, in minimum denominations specified in the Agreement. As
provided in the Agreement and subject to certain limitations therein set forth,
Class D Certificates are exchangeable for new Class D Certificates in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Class D Certificates in authorized
denominations evidencing the same aggregate Percentage Interest will be issued
to the designated transferee or transferees.
No transfer of a Class D Certificate or any interest therein shall be made
(A) to any employee benefit plan or other retirement arrangement, including
individual retirement accounts and annuities, Keogh plans and collective
investment funds and separate accounts in which such plans, accounts or
arrangements are invested, including, without limitation, insurance company
general accounts, that is subject to ERISA or the Code (each, a "Plan"), or (B)
to any Person who is directly or indirectly purchasing such Certificate or
interest therein on behalf of, as named fiduciary of, as trustee of, or with
assets of a Plan, unless: (i) in the case of a Certificate that constitutes a
Book-Entry Certificate, the purchase and holding of such Certificate or interest
therein is exempt from the prohibited transaction provisions of Section 406 of
ERISA and Section 4975 of the Code under Section I and III of Prohibited
Transaction Class Exemption 95-60; or (ii) in the case of a Class D Certificate
that is held as a Definitive Certificate, the prospective Transferee provides
the Certificate Registrar with a certification of facts and an Opinion of
Counsel which establish to the satisfaction of the Trustee that such transfer
will not result in a violation of Section 406 of ERISA or Section 4975 of the
Code or result in the imposition of an excise tax under Section 4975 of the Code
or subject the Depositor, the Trustee, the Fiscal Agent, the Master Servicer or
the Special Servicer to any obligation in addition to those undertaken in the
Agreement. Each Person who acquires any Class D Certificate or interest therein
(unless it shall have acquired such Certificate or interest therein from the
Depositor or an Affiliate thereof or unless it shall have delivered to the
Certificate Registrar the certification of facts and Opinion of Counsel referred
to in clause (ii) of the preceding sentence) shall be required to deliver to the
Certificate Registrar (or, in the case of an interest in a Book-Entry
Certificate, to the Certificate Owner that is transferring such interest) a
certification to the effect that: (i) it is neither a Plan nor any Person who is
directly or indirectly purchasing such Class D Certificate or interest therein
on behalf of, as named fiduciary of, as trustee of, or with assets of a Plan; or
(ii) the purchase and
A-7-4
<PAGE>
holding of such Certificate or interest therein by such person is exempt from
the prohibited transaction provisions of Section 406 of ERISA and Section 4975
of the Code under Section I and II of Prohibited Transaction Class Exemption
95-60.
No service charge will be imposed for any registration of transfer or
exchange of Class D Certificates, but the Trustee or the Certificate Registrar
may require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of Class
D Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
Prior to due presentment of this Certificate for registration of transfer,
the Depositor, the Master Servicer, the Special Servicer, the Trustee, the
Fiscal Agent, the Certificate Registrar and any agents 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 or any such
agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall terminate
upon distribution (or provision for distribution) to the Certificateholders of
all amounts held by or on behalf of the Trustee and required to be distributed
to them pursuant to the Agreement following the earlier of (i) the final payment
or other liquidation (or any advance with respect thereto) of the last Mortgage
Loan or REO Property remaining in the Trust Fund, and (ii) the purchase by the
Depositor, the Master Servicer, the Special Servicer or the Holders of Class R-I
Certificates representing a majority Percentage Interest in such Class, at a
price determined as provided in the Agreement, of all Mortgage Loans and any REO
Properties remaining in the Trust Fund. The Agreement permits, but does not
require, the Depositor, the Master Servicer, or such Holders to purchase from
the Trust Fund all Mortgage Loans and any REO Properties remaining therein at
such time as the aggregate Stated Principal Balance of the Mortgage Pool is less
than 3% of the aggregate Cut-off Date Principal Balance of the Mortgage Pool
specified on the face hereof. The exercise of such right will effect early
retirement of the Certificates.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer, the Trustee and the Fiscal
Agent thereunder and the rights of the Certificateholders thereunder, at any
time by the Depositor, the Master Servicer, the Special Servicer, the Trustee
and the Fiscal Agent with the consent of the Holders of Certificates entitled to
at least 51% of the Voting Rights allocated to the affected Classes. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
A-7-5
<PAGE>
The Agreement also permits the amendment thereof, in certain circumstances,
including any amendment necessary to maintain the status of REMIC I, REMIC II or
REMIC III as a REMIC, without the consent of the Holders of any of the
Certificates.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it will
look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal laws of
the State of New York applicable to agreements made and to be performed in said
State, and the obligations, rights and remedies of the Holder hereof shall be
determined in accordance with such laws.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
LaSalle National Bank,
as Trustee
By:_________________________________
Authorized Officer
A-7-6
<PAGE>
CERTIFICATE OF AUTHENTICATION
This is one of the Class D Certificates referred to in the within-mentioned
Agreement.
Dated:
LaSalle National Bank,
as Certificate Registrar
By:_________________________________
Authorized Officer
A-7-7
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(please print or typewrite name and address
including postal zip code of assignee)
the beneficial ownership interest in the Trust Fund evidenced by the within
Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage
Pass-Through Certificate of a like Percentage Interest and Class to the above
named assignee and delivery of such Commercial Mortgage Pass-Through Certificate
to the following address:
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
Dated:____________
-------------------------------------
Signature by or on behalf of Assignor
-------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise,
in immediately available funds, to________________________________ for the
account of________________________________________________________________.
Distributions made by check (such check to be made payable to
____________________) and all applicable statements and notices should be mailed
to__________________________________________.
This information is provided by ___________________________, the assignee
named above, or ____________________________________, as its agent.
A-7-8
<PAGE>
EXHIBIT A-8
FORM OF CLASS E CERTIFICATE
CLASS E COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 1997-C1
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool (the "Mortgage Pool") of multifamily and
commercial mortgage loans (the "Mortgage Loans"), such pool being formed and
sold by
MORGAN STANLEY CAPITAL I INC.
<TABLE>
<S> <C>
Pass-Through Rate: Certificate Principal Balance of this
7.8500% per annum Class E Certificate as of the
Issue Date: $______________
Date of Pooling and Servicing Class Principal Balance of all the Class E
Agreement: March 1, 1997 Certificates as of the Issue Date:
$6,406,000
Cut-off Date: March 1, 1997 Aggregate unpaid principal balance of the
Issue Date: March 26, 1997 Mortgage Pool as of the Cut-off Date, after
deducting payments of principal due on or before
such date, whether or not received: $640,657,923
First Distribution Date:
April 15, 1997
Master Servicer and Special Servicer: Trustee: LaSalle National Bank
GMAC Commercial Mortgage Corporation CUSIP No.: 61745M AP 8
Certificate No. E-__
</TABLE>
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR, THE
TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
A-8-1
<PAGE>
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN MORGAN
STANLEY CAPITAL I INC., GMAC COMMERCIAL MORTGAGE CORPORATION, LASALLE NATIONAL
BANK, ABN AMRO BANK N.V. OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1A, CLASS A-1B, CLASS A-1C, CLASS
A-2, CLASS IO-1, CLASS IO-2, CLASS B, CLASS C AND CLASS D CERTIFICATES OF THE
SAME SERIES, AS AND TO THE EXTENT PROVIDED IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN TO AN EMPLOYEE BENEFIT
PLAN OR OTHER RETIREMENT ARRANGEMENT SUBJECT TO THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR THE INTERNAL REVENUE CODE OF 1986
(THE "CODE"), OR TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS
CERTIFICATE OR ANY INTEREST HEREIN ON BEHALF OF, AS NAMED FIDUCIARY OF, AS
TRUSTEE OF, OR WITH ASSETS OF ANY SUCH EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT, WILL BE REGISTERED EXCEPT IN COMPLIANCE WITH THE PROCEDURES
DESCRIBED HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH HEREIN FOLLOWING RETIREMENT OF THE
CLASS A-1A, CLASS A-1B, CLASS A-1C, CLASS A-2, CLASS B, CLASS C AND CLASS D
CERTIFICATES OF THE SAME SERIES. IN ADDITION, FOLLOWING THE DATE ON WHICH THE
AGGREGATE CERTIFICATE PRINCIPAL BALANCE OF THE CLASS F, CLASS G, CLASS H AND
CLASS J CERTIFICATES OF THE SAME SERIES IS REDUCED TO ZERO, THE CERTIFICATE
PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE REDUCED IN CONNECTION WITH LOSSES
ON THE MORTGAGE LOANS AND CERTAIN UNANTICIPATED EXPENSES. ACCORDINGLY, THE
OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN
THE AMOUNT SHOWN ABOVE.
This certifies that _______________________________________ is the
registered owner of the Percentage Interest evidenced by this Class E
Certificate (obtained by dividing the principal balance of this Class E
Certificate (its "Certificate Principal Balance") as of the Issue Date by the
aggregate principal balance of all the Class E Certificates (their "Class
Principal
A-8-2
<PAGE>
Balance") as of the Issue Date) in that certain beneficial ownership interest,
evidenced by all the Class E Certificates, in the Trust Fund created pursuant to
a Pooling and Servicing Agreement, dated as specified above (the "Agreement"),
between 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, the capitalized terms used herein have the respective meanings assigned
in the Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on the
15th day of each month or, if such 15th day is not a Business Day, the Business
Day immediately following (each, a "Distribution Date"), commencing on the First
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month of
such distribution (the "Record Date"), in an amount equal to the product of the
Percentage Interest evidenced by this Certificate and the amount required to be
distributed to the Holders of the Class E Certificates on the applicable
Distribution Date pursuant to the Agreement. All distributions made under the
Agreement on any Class E Certificate will be made by the Trustee by wire
transfer in immediately available funds to the account of the Person entitled
thereto at a bank or other entity having appropriate facilities therefor, if
such Certificateholder shall have provided the Trustee with wiring instructions
on or prior to the Record Date for such distribution (which wiring instructions
may be in the form of a standing order applicable to all subsequent
distributions as well) or otherwise by check mailed to the address of such
Certificateholder appearing in the Certificate Register. Notwithstanding the
above, the final distribution on this Certificate (determined without regard to
any possible future reimbursement of any Realized Loss or Expense Loss
previously allocated to this Certificate) will be made after due notice by the
Trustee of the pendency of such distribution and only upon presentation and
surrender of this Certificate at the offices of the Certificate Registrar
appointed as provided in the Agreement or such other location as may be
specified in such notice. Also notwithstanding the foregoing, any distribution
that may be made with respect to this Certificate in reimbursement of any
Realized Loss or Expense Loss previously allocated to this Certificate, which
reimbursement is to occur after the date on which this Certificate is
surrendered as contemplated by the preceding sentence, will be made by check
mailed to the address of the Holder that surrenders this Certificate as such
address last appeared in the Certificate Register or to any such other address
of which the Trustee is subsequently notified in writing.
Any distribution to the Holder of this Certificate in reduction of the
Certificate Principal Balance hereof is binding on such Holder and all future
Holders of this Certificate and any Certificate issued upon the transfer hereof
or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Depositor's Mortgage Pass-Through Certificates, Series 1997-C1 (the
"Certificates") are limited in right of distribution to certain collections and
recoveries respecting the Mortgage Loans, all as more specifically set forth
herein and in the Agreement. As provided
A-8-3
<PAGE>
in the Agreement, withdrawals from the Collection Account and the Distribution
Account may be made from time to time for purposes other than, and, in certain
cases, prior to, distributions to Certificateholders, such purposes including
the reimbursement of advances made, or certain expenses incurred, with respect
to the Mortgage Loans and the payment of interest on such advances and expenses.
The Class E Certificates are issuable in fully registered form only,
without coupons, in minimum denominations specified in the Agreement. As
provided in the Agreement and subject to certain limitations therein set forth,
Class E Certificates are exchangeable for new Class E Certificates in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Class E Certificates in authorized
denominations evidencing the same aggregate Percentage Interest will be issued
to the designated transferee or transferees.
No transfer of a Class E Certificate or any interest therein shall be made
(A) to any employee benefit plan or other retirement arrangement, including
individual retirement accounts and annuities, Keogh plans and collective
investment funds and separate accounts in which such plans, accounts or
arrangements are invested, including, without limitation, insurance company
general accounts, that is subject to ERISA or the Code (each, a "Plan"), or (B)
to any Person who is directly or indirectly purchasing such Certificate or
interest therein on behalf of, as named fiduciary of, as trustee of, or with
assets of a Plan, unless: (i) in the case of a Certificate that constitutes a
Book-Entry Certificate, the purchase and holding of such Certificate or interest
therein is exempt from the prohibited transaction provisions of Section 406 of
ERISA and Section 4975 of the Code under Section I and III of Prohibited
Transaction Class Exemption 95-60; or (ii) in the case of a Class E Certificate
that is held as a Definitive Certificate, the prospective Transferee provides
the Certificate Registrar with a certification of facts and an Opinion of
Counsel which establish to the satisfaction of the Trustee that such transfer
will not result in a violation of Section 406 of ERISA or Section 4975 of the
Code or result in the imposition of an excise tax under Section 4975 of the Code
or subject the Depositor, the Trustee, the Fiscal Agent, the Master Servicer or
the Special Servicer to any obligation in addition to those undertaken in the
Agreement. Each Person who acquires any Class E Certificate or interest therein
(unless it shall have acquired such Certificate or interest therein from the
Depositor or an Affiliate thereof or unless it shall have delivered to the
Certificate Registrar the certification of facts and Opinion of Counsel referred
to in clause (ii) of the preceding sentence) will be required to deliver to the
Certificate Registrar (or, in the case of an interest in a Book-Entry
Certificate, to the Certificate Owner that is transferring such interest) a
certification to the effect that: (i) it is neither a Plan nor any Person who is
directly or indirectly purchasing such Class E Certificate or interest therein
on behalf of, as named fiduciary of, as trustee of, or with assets of a Plan; or
(ii) the purchase and
A-8-4
<PAGE>
holding of such Certificate or interest therein by such person is exempt from
the prohibited transaction provisions of Section 406 of ERISA and Section 4975
of the Code under Section I and II of Prohibited Transaction Class Exemption
95-60.
No service charge will be imposed for any registration of transfer or
exchange of Class E Certificates, but the Trustee or the Certificate Registrar
may require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of Class
E Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
Prior to due presentment of this Certificate for registration of transfer,
the Depositor, the Master Servicer, the Special Servicer, the Trustee, the
Fiscal Agent, the Certificate Registrar and any agents 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 or any such
agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall terminate
upon distribution (or provision for distribution) to the Certificateholders of
all amounts held by or on behalf of the Trustee and required to be distributed
to them pursuant to the Agreement following the earlier of (i) the final payment
or other liquidation (or any advance with respect thereto) of the last Mortgage
Loan or REO Property remaining in the Trust Fund, and (ii) the purchase by the
Depositor, the Master Servicer, the Special Servicer or the Holders of Class R-I
Certificates representing a majority Percentage Interest in such Class, at a
price determined as provided in the Agreement, of all Mortgage Loans and any REO
Properties remaining in the Trust Fund. The Agreement permits, but does not
require, the Depositor, the Master Servicer, or such Holders to purchase from
the Trust Fund all Mortgage Loans and any REO Properties remaining therein at
such time as the aggregate Stated Principal Balance of the Mortgage Pool is less
than 3% of the aggregate Cut-off Date Principal Balance of the Mortgage Pool
specified on the face hereof. The exercise of such right will effect early
retirement of the Certificates.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer, the Trustee and the Fiscal
Agent thereunder and the rights of the Certificateholders thereunder, at any
time by the Depositor, the Master Servicer, the Special Servicer, the Trustee
and the Fiscal Agent with the consent of the Holders of Certificates entitled to
at least 51% of the Voting Rights allocated to the affected Classes. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
A-8-5
<PAGE>
The Agreement also permits the amendment thereof, in certain circumstances,
including any amendment necessary to maintain the status of REMIC I, REMIC II or
REMIC III as a REMIC, without the consent of the Holders of any of the
Certificates.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it will
look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal laws of
the State of New York applicable to agreements made and to be performed in said
State, and the obligations, rights and remedies of the Holder hereof shall be
determined in accordance with such laws.
A-8-6
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
LaSalle National Bank,
as Trustee
By:_________________________________
Authorized Officer
A-8-7
<PAGE>
CERTIFICATE OF AUTHENTICATION
This is one of the Class E Certificates referred to in the within-mentioned
Agreement.
Dated:
LaSalle National Bank,
as Certificate Registrar
By:_________________________________
Authorized Officer
A-8-8
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(please print or typewrite name and address
including postal zip code of assignee)
the beneficial ownership interest in the Trust Fund evidenced by the within
Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the issuance of a new Commercial
Mortgage Pass-Through Certificate of a like Percentage Interest and Class to the
above named assignee and delivery of such Commercial Mortgage Pass-Through
Certificate to the following address:
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
Dated:____________
-------------------------------------
Signature by or on behalf of Assignor
-------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise,
in immediately available funds, to________________________________ for the
account of________________________________________________________________.
Distributions made by check (such check to be made payable to
____________________) and all applicable statements and notices should be mailed
to__________________________________________.
This information is provided by ___________________________, the assignee
named above, or ____________________________________, as its agent.
A-8-9
<PAGE>
EXHIBIT A-9
FORM OF CLASS F CERTIFICATE
CLASS F COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 1997-C1
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool (the "Mortgage Pool") of multifamily and
commercial mortgage loans (the "Mortgage Loans"), such pool being formed and
sold by
MORGAN STANLEY CAPITAL I INC.
<TABLE>
<S> <C>
Pass-Through Rate: Certificate Principal Balance of this
6.8500% per annum Class F Certificate as of the
Issue Date: $______________
Date of Pooling and Servicing Class Principal Balance of all the Class F
Agreement: March 1, 1997 Certificates as of the Issue Date:
$19,220,000
Cut-off Date: March 1, 1997 Aggregate unpaid principal balance of the
Issue Date: March 26, 1997 Mortgage Pool as of the Cut-off Date, after
deducting payments of principal due on or before
such date, whether or not received: $640,657,923
First Distribution Date:
April 15, 1997
Master Servicer and Special Servicer: Trustee: LaSalle National Bank
GMAC Commercial Mortgage Corporation CUSIP No.: 61745M AQ 6
Certificate No. F-__
</TABLE>
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR, THE
TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
A-9-1
<PAGE>
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN MORGAN
STANLEY CAPITAL I INC., GMAC COMMERCIAL MORTGAGE CORPORATION, LASALLE NATIONAL
BANK, ABN AMRO BANK N.V. OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1A, CLASS A-1B, CLASS A-1C, CLASS
A-2, CLASS IO-1, CLASS IO-2, CLASS B, CLASS C, CLASS D AND CLASS E CERTIFICATES
OF THE SAME SERIES, AS AND TO THE EXTENT PROVIDED IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES
LAWS OF ANY STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE
WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION
WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH
THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO
HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN TO AN EMPLOYEE BENEFIT
PLAN OR OTHER RETIREMENT ARRANGEMENT SUBJECT TO THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR THE INTERNAL REVENUE CODE OF 1986
(THE "CODE"), OR TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS
CERTIFICATE OR ANY INTEREST HEREIN ON BEHALF OF, AS NAMED FIDUCIARY OF, AS
TRUSTEE OF, OR WITH ASSETS OF ANY SUCH EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT, WILL BE REGISTERED EXCEPT IN COMPLIANCE WITH THE PROCEDURES
DESCRIBED HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE. THE
FOLLOWING INFORMATION IS PROVIDED SOLELY FOR THE PURPOSES OF APPLYING THE U.S.
FEDERAL INCOME TAX ORIGINAL ISSUE DISCOUNT ("OID") RULES TO THIS CERTIFICATE.
THE ISSUE DATE OF THIS CERTIFICATE IS MARCH 26, 1997. ASSUMING THAT THE MORTGAGE
LOANS PREPAY AT AN ASSUMED RATE OF PREPAYMENT USED SOLELY FOR THE PURPOSES OF
APPLYING THE OID RULES TO THE CERTIFICATES EQUAL TO A CPR (WITHIN THE MEANING OF
THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN) OF 5% DURING THE
RESPECTIVE PERIODS WHEN VOLUNTARY PREPAYMENTS OF PRINCIPAL THEREON ARE PERMITTED
A-9-2
<PAGE>
WITHOUT THE IMPOSITION OF A PREPAYMENT PREMIUM BASED ON A YIELD MAINTENANCE
FORMULA (THE "PREPAYMENT ASSUMPTION"), THIS CERTIFICATE HAS BEEN ISSUED WITH NO
MORE THAN $137.28 OF OID PER $1000 OF INITIAL CERTIFICATE PRINCIPAL BALANCE, THE
YIELD TO MATURITY IS 9.0780% PER ANNUM AND THE AMOUNT OF OID ATTRIBUTABLE TO THE
INITIAL ACCRUAL PERIOD IS NO MORE THAN $0.45 PER $1000 OF INITIAL CERTIFICATE
PRINCIPAL BALANCE, COMPUTED UNDER THE EXACT METHOD. NO REPRESENTATION IS MADE
THAT THE MORTGAGE LOANS WILL PREPAY AT A RATE BASED ON THE PREPAYMENT ASSUMPTION
OR AT ANY OTHER RATE.
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH HEREIN FOLLOWING RETIREMENT OF THE
CLASS A-1A, CLASS A-1B, CLASS A-1C, CLASS A-2, CLASS B, CLASS C, CLASS D AND
CLASS E CERTIFICATES OF THE SAME SERIES. IN ADDITION, FOLLOWING THE DATE ON
WHICH THE AGGREGATE CERTIFICATE PRINCIPAL BALANCE OF THE CLASS G, CLASS H AND
CLASS J CERTIFICATES OF THE SAME SERIES IS REDUCED TO ZERO, THE CERTIFICATE
PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE REDUCED IN CONNECTION WITH LOSSES
ON THE MORTGAGE LOANS AND CERTAIN UNANTICIPATED EXPENSES. ACCORDINGLY, THE
OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN
THE AMOUNT SHOWN ABOVE.
This certifies that _______________________________________ is the
registered owner of the Percentage Interest evidenced by this Class F
Certificate (obtained by dividing the principal balance of this Class F
Certificate (its "Certificate Principal Balance") as of the Issue Date by the
aggregate principal balance of all the Class F Certificates (their "Class
Principal Balance") as of the Issue Date) in that certain beneficial ownership
interest, evidenced by all the Class F Certificates, in the Trust Fund created
pursuant to a Pooling and Servicing Agreement, dated as specified above (the
"Agreement"), between 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, the capitalized terms used herein have the
respective meanings assigned in the Agreement. This Certificate is issued under
and is subject to the terms, provisions and conditions of the Agreement, to
which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on the
15th day of each month or, if such 15th day is not a Business Day, the Business
Day immediately following (each, a "Distribution Date"), commencing on the First
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"), in an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed to the Holders of the
Class F Certificates on the applicable
A-9-3
<PAGE>
Distribution Date pursuant to the Agreement. All distributions made under the
Agreement on any Class F Certificate will be made by the Trustee by wire
transfer in immediately available funds to the account of the Person entitled
thereto at a bank or other entity having appropriate facilities therefor, if
such Certificateholder shall have provided the Trustee with wiring instructions
on or prior to the Record Date for such distribution (which wiring instructions
may be in the form of a standing order applicable to all subsequent
distributions as well) or otherwise by check mailed to the address of such
Certificateholder appearing in the Certificate Register. Notwithstanding the
above, the final distribution on this Certificate (determined without regard to
any possible future reimbursement of any Realized Loss or Expense Loss
previously allocated to this Certificate) will be made after due notice by the
Trustee of the pendency of such distribution and only upon presentation and
surrender of this Certificate at the offices of the Certificate Registrar
appointed as provided in the Agreement or such other location as may be
specified in such notice. Also notwithstanding the foregoing, any distribution
that may be made with respect to this Certificate in reimbursement of any
Realized Loss or Expense Loss previously allocated to this Certificate, which
reimbursement is to occur after the date on which this Certificate is
surrendered as contemplated by the preceding sentence, will be made by check
mailed to the address of the Holder that surrenders this Certificate as such
address last appeared in the Certificate Register or to any such other address
of which the Trustee is subsequently notified in writing.
Any distribution to the Holder of this Certificate in reduction of the
Certificate Principal Balance hereof is binding on such Holder and all future
Holders of this Certificate and any Certificate issued upon the transfer hereof
or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Depositor's Mortgage Pass-Through Certificates, Series 1997-C1 (the
"Certificates") are limited in right of distribution to certain collections and
recoveries respecting the Mortgage Loans, all as more specifically set forth
herein and in the Agreement. As provided in the Agreement, withdrawals from the
Collection Account and the Distribution Account may be made from time to time
for purposes other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
The Class F Certificates are issuable in fully registered form only,
without coupons, in minimum denominations specified in the Agreement. As
provided in the Agreement and subject to certain limitations therein set forth,
Class F Certificates are exchangeable for new Class F Certificates in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and
A-9-4
<PAGE>
thereupon one or more new Class F Certificates in authorized denominations
evidencing the same aggregate Percentage Interest will be issued to the
designated transferee or transferees.
No transfer, sale, pledge or other disposition of any Class F Certificate
or interest therein shall be made unless that transfer, sale, pledge or other
disposition is exempt from the registration and/or qualification requirements of
the Securities Act and any applicable state securities laws, or is otherwise
made in accordance with the Securities Act and such state securities laws. If a
transfer of any Class F Certificate held as a Definitive Certificate is to be
made without registration under the Securities Act (other than in connection
with the initial issuance of the Certificates or a transfer of such Class F
Certificate by the Depositor or any of its Affiliates), then the Certificate
Registrar shall refuse to register such transfer unless it receives (and upon
receipt, may conclusively rely upon) either: (i) a certificate from the
Certificateholder desiring to effect such transfer substantially in the form
attached to the Agreement as Exhibit D-1 and a certificate from such
Certificateholder's prospective transferee substantially in the form attached to
the Agreement either as Exhibit D-2A or as Exhibit D-2B; or (ii) an Opinion of
Counsel satisfactory to the Trustee to the effect that such transfer may be made
without registration under the Securities Act (which Opinion of Counsel shall
not be an expense of the Trust Fund or of the Depositor, the Master Servicer,
the Special Servicer, the Trustee or the Certificate Registrar in their
respective capacities as such), together with the written certification(s) as to
the facts surrounding such transfer on which such Opinion of Counsel is based.
If a transfer of any interest in a Class F Certificate that constitutes a
Book-Entry Certificate is to be made without registration under the Securities
Act (other than in connection with the initial issuance of the Certificates or a
transfer of any interest in such Class F Certificate by the Depositor or any of
its Affiliates), then the Certificate Owner desiring to effect such transfer
shall be required to obtain either (i) a certificate from such Certificate
Owner's prospective Transferee substantially in the form attached to the
Agreement as Exhibit D-3A or as Exhibit D-3B, or (ii) an Opinion of Counsel to
the effect that such transfer may be made without registration under the
Securities Act. None of the Depositor, the Trustee or the Certificate Registrar
is obligated to register or qualify any Class F Certificates under the
Securities Act or any other securities law or to take any action not otherwise
required under this Agreement to permit the transfer of any Class F Certificate
or interest therein without registration or qualification. Any Certificateholder
or Certificate Owner desiring to effect a transfer of Class F Certificates or
interests therein shall, and does hereby agree to, indemnify, the Depositor, the
Underwriter, the Trustee, the Master Servicer, the Special Servicer and the
Certificate Registrar against any liability that may result if the transfer is
not exempt from such registration or qualification or is not made in accordance
with such federal and state laws.
No transfer of a Class F Certificate or any interest therein shall be made
(A) to any employee benefit plan or other retirement arrangement, including
individual retirement accounts and annuities, Keogh plans and collective
investment funds and separate accounts in which such plans, accounts or
arrangements are invested, including, without limitation, insurance company
general accounts, that is subject to ERISA or the Code (each, a "Plan"), or (B)
to any Person who is directly or indirectly purchasing such Certificate or
interest therein on behalf of, as named fiduciary of, as trustee of, or with
assets of a Plan, unless: (i) in the case of a Certificate that
A-9-5
<PAGE>
constitutes a Book-Entry Certificate, the purchase and holding of such
Certificate or interest therein is exempt from the prohibited transaction
provisions of Section 406 of ERISA and Section 4975 of the Code under Section I
and III of Prohibited Transaction Class Exemption 95-60; or (ii) in the case of
a Class F Certificate that is held as a Definitive Certificate, the prospective
Transferee provides the Certificate Registrar with a certification of facts and
an Opinion of Counsel which establish to the satisfaction of the Trustee that
such transfer will not result in a violation of Section 406 of ERISA or Section
4975 of the Code or result in the imposition of an excise tax under Section 4975
of the Code or subject the Depositor, the Trustee, the Fiscal Agent, the Master
Servicer or the Special Servicer to any obligation in addition to those
undertaken in the Agreement. Each Person who acquires any Class F Certificate or
interest therein (unless it shall have acquired such Certificate or interest
therein from the Depositor or an Affiliate thereof or unless it shall have
delivered to the Certificate Registrar the certification of facts and Opinion of
Counsel referred to in clause (ii) of the preceding sentence) shall be required
to deliver to the Certificate Registrar (or, in the case of an interest in a
Book-Entry Certificate, to the Certificate Owner that is transferring such
interest) a certification to the effect that: (i) it is neither a Plan nor any
Person who is directly or indirectly purchasing such Class F Certificate or
interest therein on behalf of, as named fiduciary of, as trustee of, or with
assets of a Plan; or (ii) the purchase and holding of such Certificate or
interest therein by such person is exempt from the prohibited transaction
provisions of Section 406 of ERISA and Section 4975 of the Code under Section I
and II of Prohibited Transaction Class Exemption 95-60.
No service charge will be imposed for any registration of transfer or
exchange of Class F Certificates, but the Trustee or the Certificate Registrar
may require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of Class
F Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
Prior to due presentment of this Certificate for registration of transfer,
the Depositor, the Master Servicer, the Special Servicer, the Trustee, the
Fiscal Agent, the Certificate Registrar and any agents 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 or any such
agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall terminate
upon distribution (or provision for distribution) to the Certificateholders of
all amounts held by or on behalf of the Trustee and required to be distributed
to them pursuant to the Agreement following the earlier of (i) the final payment
or other liquidation (or any advance with respect thereto) of the last Mortgage
Loan or REO Property remaining in the Trust Fund, and (ii) the purchase by the
Depositor, the Master Servicer, the Special Servicer or the Holders of Class R-I
Certificates
A-9-6
<PAGE>
representing a majority Percentage Interest in such Class, at a price determined
as provided in the Agreement, of all Mortgage Loans and any REO Properties
remaining in the Trust Fund. The Agreement permits, but does not require, the
Depositor, the Master Servicer, or such Holders to purchase from the Trust Fund
all Mortgage Loans and any REO Properties remaining therein at such time as the
aggregate Stated Principal Balance of the Mortgage Pool is less than 3% of the
aggregate Cut-off Date Principal Balance of the Mortgage Pool specified on the
face hereof. The exercise of such right will effect early retirement of the
Certificates.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer, the Trustee and the Fiscal
Agent thereunder and the rights of the Certificateholders thereunder, at any
time by the Depositor, the Master Servicer, the Special Servicer, the Trustee
and the Fiscal Agent with the consent of the Holders of Certificates entitled to
at least 51% of the Voting Rights allocated to the affected Classes. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain circumstances,
including any amendment necessary to maintain the status of REMIC I, REMIC II or
REMIC III as a REMIC, without the consent of the Holders of any of the
Certificates.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it will
look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal laws of
the State of New York applicable to agreements made and to be performed in said
State, and the obligations, rights and remedies of the Holder hereof shall be
determined in accordance with such laws.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
LaSalle National Bank,
as Trustee
By:_________________________________
Authorized Officer
A-9-7
<PAGE>
CERTIFICATE OF AUTHENTICATION
This is one of the Class F Certificates referred to in the within-mentioned
Agreement.
Dated:
LaSalle National Bank,
as Certificate Registrar
By:_________________________________
Authorized Officer
A-9-8
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(please print or typewrite name and address
including postal zip code of assignee)
the beneficial ownership interest in the Trust Fund evidenced by the within
Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the issuance of a new Commercial
Mortgage Pass-Through Certificate of a like Percentage Interest and Class to the
above named assignee and delivery of such Commercial Mortgage Pass-Through
Certificate to the following address:
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
Dated:____________
-------------------------------------
Signature by or on behalf of Assignor
-------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise,
in immediately available funds, to________________________________ for the
account of________________________________________________________________.
Distributions made by check (such check to be made payable to
____________________) and all applicable statements and notices should be mailed
to__________________________________________.
This information is provided by ___________________________, the assignee
named above, or ____________________________________, as its agent.
A-9-9
<PAGE>
EXHIBIT A-10
FORM OF CLASS G CERTIFICATE
CLASS G COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 1997-C1
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool (the "Mortgage Pool") of multifamily and
commercial mortgage loans (the "Mortgage Loans"), such pool being formed and
sold by
MORGAN STANLEY CAPITAL I INC.
<TABLE>
<S> <C>
Pass-Through Rate: Certificate Principal Balance of this
6.8500% per annum Class G Certificate as of the
Issue Date: $______________
Date of Pooling and Servicing Class Principal Balance of all the Class G
Agreement: March 1, 1997 Certificates as of the Issue Date:
$11,211,000
Cut-off Date: March 1, 1997 Aggregate unpaid principal balance of the
Issue Date: March 26, 1997 Mortgage Pool as of the Cut-off Date, after
deducting payments of principal due on or before
such date, whether or not received: $640,657,923
First Distribution Date:
April 15, 1997
Master Servicer and Special Servicer: Trustee: LaSalle National Bank
GMAC Commercial Mortgage Corporation CUSIP No.: 61745M AR 4
Certificate No. G-__
</TABLE>
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR, THE
TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
A-10-1
<PAGE>
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN MORGAN
STANLEY CAPITAL I INC., GMAC COMMERCIAL MORTGAGE CORPORATION, LASALLE NATIONAL
BANK, ABN AMRO BANK N.V. OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1A, CLASS A-1B, CLASS A-1C, CLASS
A-2, CLASS IO-1, CLASS IO-2, CLASS B, CLASS C, CLASS D, CLASS E AND CLASS F
CERTIFICATES OF THE SAME SERIES, AS AND TO THE EXTENT PROVIDED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES
LAWS OF ANY STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE
WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION
WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH
THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO
HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN TO AN EMPLOYEE BENEFIT
PLAN OR OTHER RETIREMENT ARRANGEMENT SUBJECT TO THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR THE INTERNAL REVENUE CODE OF 1986
(THE "CODE"), OR TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS
CERTIFICATE OR ANY INTEREST HEREIN ON BEHALF OF, AS NAMED FIDUCIARY OF, AS
TRUSTEE OF, OR WITH ASSETS OF ANY SUCH EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT, WILL BE REGISTERED EXCEPT IN COMPLIANCE WITH THE PROCEDURES
DESCRIBED HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE. THE
FOLLOWING INFORMATION IS PROVIDED SOLELY FOR THE PURPOSES OF APPLYING THE U.S.
FEDERAL INCOME TAX ORIGINAL ISSUE DISCOUNT ("OID") RULES TO THIS CERTIFICATE.
THE ISSUE DATE OF THIS CERTIFICATE IS MARCH 26, 1997. ASSUMING THAT THE MORTGAGE
LOANS PREPAY AT AN ASSUMED RATE OF PREPAYMENT USED SOLELY FOR THE PURPOSES OF
APPLYING THE OID RULES TO THE CERTIFICATES EQUAL TO A CPR (WITHIN THE MEANING OF
THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN) OF 5% DURING THE
RESPECTIVE PERIODS WHEN VOLUNTARY PREPAYMENTS OF PRINCIPAL THEREON ARE PERMITTED
A-10-2
<PAGE>
WITHOUT THE IMPOSITION OF A PREPAYMENT PREMIUM BASED ON A YIELD MAINTENANCE
FORMULA (THE "PREPAYMENT ASSUMPTION"), THIS CERTIFICATE HAS BEEN ISSUED WITH NO
MORE THAN $177.58 OF OID PER $1000 OF INITIAL CERTIFICATE PRINCIPAL BALANCE, THE
YIELD TO MATURITY IS 9.5027% PER ANNUM AND THE AMOUNT OF OID ATTRIBUTABLE TO THE
INITIAL ACCRUAL PERIOD IS NO MORE THAN $0.43 PER $1000 OF INITIAL CERTIFICATE
PRINCIPAL BALANCE, COMPUTED UNDER THE EXACT METHOD. NO REPRESENTATION IS MADE
THAT THE MORTGAGE LOANS WILL PREPAY AT A RATE BASED ON THE PREPAYMENT ASSUMPTION
OR AT ANY OTHER RATE.
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH HEREIN FOLLOWING RETIREMENT OF THE
CLASS A-1A, CLASS A-1B, CLASS A-1C, CLASS A-2, CLASS B, CLASS C, CLASS D, CLASS
E AND CLASS F CERTIFICATES OF THE SAME SERIES. IN ADDITION, FOLLOWING THE DATE
ON WHICH THE AGGREGATE CERTIFICATE PRINCIPAL BALANCE OF THE CLASS H AND CLASS J
CERTIFICATES OF THE SAME SERIES IS REDUCED TO ZERO, THE CERTIFICATE PRINCIPAL
BALANCE OF THIS CERTIFICATE MAY BE REDUCED IN CONNECTION WITH LOSSES ON THE
MORTGAGE LOANS AND CERTAIN UNANTICIPATED EXPENSES. ACCORDINGLY, THE OUTSTANDING
CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT
SHOWN ABOVE.
This certifies that _______________________________________ is the
registered owner of the Percentage Interest evidenced by this Class G
Certificate (obtained by dividing the principal balance of this Class G
Certificate (its "Certificate Principal Balance") as of the Issue Date by the
aggregate principal balance of all the Class G Certificates (their "Class
Principal Balance") as of the Issue Date) in that certain beneficial ownership
interest, evidenced by all the Class G Certificates, in the Trust Fund created
pursuant to a Pooling and Servicing Agreement, dated as specified above (the
"Agreement"), between 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, the capitalized terms used herein have the
respective meanings assigned in the Agreement. This Certificate is issued under
and is subject to the terms, provisions and conditions of the Agreement, to
which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on the
15th day of each month or, if such 15th day is not a Business Day, the Business
Day immediately following (each, a "Distribution Date"), commencing on the First
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month of
such distribution (the "Record Date"), in an amount equal to the product of the
Percentage Interest evidenced by this Certificate and the amount required to be
distributed to the Holders of the Class G Certificates on the applicable
Distribution Date pursuant to the
A-10-3
<PAGE>
Agreement. All distributions made under the Agreement on any Class G Certificate
will be made by the Trustee by wire transfer in immediately available funds to
the account of the Person entitled thereto at a bank or other entity having
appropriate facilities therefor, if such Certificateholder shall have provided
the Trustee with wiring instructions on or prior to the Record Date for such
distribution (which wiring instructions may be in the form of a standing order
applicable to all subsequent distributions as well) or otherwise by check mailed
to the address of such Certificateholder appearing in the Certificate Register.
Notwithstanding the above, the final distribution on this Certificate
(determined without regard to any possible future reimbursement of any Realized
Loss or Expense Loss previously allocated to this Certificate) will be made
after due notice by the Trustee of the pendency of such distribution and only
upon presentation and surrender of this Certificate at the offices of the
Certificate Registrar appointed as provided in the Agreement or such other
location as may be specified in such notice. Also notwithstanding the foregoing,
any distribution that may be made with respect to this Certificate in
reimbursement of any Realized Loss or Expense Loss previously allocated to this
Certificate, which reimbursement is to occur after the date on which this
Certificate is surrendered as contemplated by the preceding sentence, will be
made by check mailed to the address of the Holder that surrenders this
Certificate as such address last appeared in the Certificate Register or to any
such other address of which the Trustee is subsequently notified in writing.
Any distribution to the Holder of this Certificate in reduction of the
Certificate Principal Balance hereof is binding on such Holder and all future
Holders of this Certificate and any Certificate issued upon the transfer hereof
or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Depositor's Mortgage Pass-Through Certificates, Series 1997-C1 (the
"Certificates") are limited in right of distribution to certain collections and
recoveries respecting the Mortgage Loans, all as more specifically set forth
herein and in the Agreement. As provided in the Agreement, withdrawals from the
Collection Account and the Distribution Account may be made from time to time
for purposes other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
The Class G Certificates are issuable in fully registered form only,
without coupons, in minimum denominations specified in the Agreement. As
provided in the Agreement and subject to certain limitations therein set forth,
Class G Certificates are exchangeable for new Class G Certificates in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and
A-10-4
<PAGE>
thereupon one or more new Class G Certificates in authorized denominations
evidencing the same aggregate Percentage Interest will be issued to the
designated transferee or transferees.
No transfer, sale, pledge or other disposition of any Class G Certificate
or interest therein shall be made unless that transfer, sale, pledge or other
disposition is exempt from the registration and/or qualification requirements of
the Securities Act and any applicable state securities laws, or is otherwise
made in accordance with the Securities Act and such state securities laws. If a
transfer of any Class G Certificate held as a Definitive Certificate is to be
made without registration under the Securities Act (other than in connection
with the initial issuance of the Certificates or a transfer of such Class G
Certificate by the Depositor or any of its Affiliates), then the Certificate
Registrar shall refuse to register such transfer unless it receives (and upon
receipt, may conclusively rely upon) either: (i) a certificate from the
Certificateholder desiring to effect such transfer substantially in the form
attached to the Agreement as Exhibit D-1 and a certificate from such
Certificateholder's prospective transferee substantially in the form attached to
the Agreement either as Exhibit D-2A or as Exhibit D-2B; or (ii) an Opinion of
Counsel satisfactory to the Trustee to the effect that such transfer may be made
without registration under the Securities Act (which Opinion of Counsel shall
not be an expense of the Trust Fund or of the Depositor, the Master Servicer,
the Special Servicer, the Trustee or the Certificate Registrar in their
respective capacities as such), together with the written certification(s) as to
the facts surrounding such transfer on which such Opinion of Counsel is based.
If a transfer of any interest in a Class G Certificate that constitutes a
Book-Entry Certificate is to be made without registration under the Securities
Act (other than in connection with the initial issuance of the Certificates or a
transfer of any interest in such Class G Certificate by the Depositor or any of
its Affiliates), then the Certificate Owner desiring to effect such transfer
shall be required to obtain either (i) a certificate from such Certificate
Owner's prospective Transferee substantially in the form attached to the
Agreement as Exhibit D-3A or as Exhibit D-3B, or (ii) an Opinion of Counsel to
the effect that such transfer may be made without registration under the
Securities Act. None of the Depositor, the Trustee or the Certificate Registrar
is obligated to register or qualify any Class G Certificates under the
Securities Act or any other securities law or to take any action not otherwise
required under this Agreement to permit the transfer of any Class G Certificate
or interest therein without registration or qualification. Any Certificateholder
or Certificate Owner desiring to effect a transfer of Class G Certificates or
interests therein shall, and does hereby agree to, indemnify, the Depositor, the
Underwriter, the Trustee, the Master Servicer, the Special Servicer and the
Certificate Registrar against any liability that may result if the transfer is
not exempt from such registration or qualification or is not made in accordance
with such federal and state laws.
No transfer of a Class G Certificate or any interest therein shall be made
(A) to any employee benefit plan or other retirement arrangement, including
individual retirement accounts and annuities, Keogh plans and collective
investment funds and separate accounts in which such plans, accounts or
arrangements are invested, including, without limitation, insurance company
general accounts, that is subject to ERISA or the Code (each, a "Plan"), or (B)
to any Person who is directly or indirectly purchasing such Certificate or
interest therein on behalf of, as named fiduciary of, as trustee of, or with
assets of a Plan, unless: (i) in the case of a Certificate that
A-10-5
<PAGE>
constitutes a Book-Entry Certificate, the purchase and holding of such
Certificate or interest therein is exempt from the prohibited transaction
provisions of Section 406 of ERISA and Section 4975 of the Code under Section I
and III of Prohibited Transaction Class Exemption 95-60; or (ii) in the case of
a Class G Certificate that is held as a Definitive Certificate, the prospective
Transferee provides the Certificate Registrar with a certification of facts and
an Opinion of Counsel which establish to the satisfaction of the Trustee that
such transfer will not result in a violation of Section 406 of ERISA or Section
4975 of the Code or result in the imposition of an excise tax under Section 4975
of the Code or subject the Depositor, the Trustee, the Fiscal Agent, the Master
Servicer or the Special Servicer to any obligation in addition to those
undertaken in the Agreement. Each Person who acquires any Class G Certificate or
interest therein (unless it shall have acquired such Certificate or interest
therein from the Depositor or an Affiliate thereof or unless it shall have
delivered to the Certificate Registrar the certification of facts and Opinion of
Counsel referred to in clause (ii) of the preceding sentence) shall be required
to deliver to the Certificate Registrar (or, in the case of an interest in a
Book-Entry Certificate, to the Certificate Owner that is transferring such
interest) a certification to the effect that: (i) it is neither a Plan nor any
Person who is directly or indirectly purchasing such Class G Certificate or
interest therein on behalf of, as named fiduciary of, as trustee of, or with
assets of a Plan; or (ii) the purchase and holding of such Certificate or
interest therein by such person is exempt from the prohibited transaction
provisions of Section 406 of ERISA and Section 4975 of the Code under Section I
and II of Prohibited Transaction Class Exemption 95-60.
No service charge will be imposed for any registration of transfer or
exchange of Class G Certificates, but the Trustee or the Certificate Registrar
may require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of Class
G Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
Prior to due presentment of this Certificate for registration of transfer,
the Depositor, the Master Servicer, the Special Servicer, the Trustee, the
Fiscal Agent, the Certificate Registrar and any agents 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 or any such
agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall terminate
upon distribution (or provision for distribution) to the Certificateholders of
all amounts held by or on behalf of the Trustee and required to be distributed
to them pursuant to the Agreement following the earlier of (i) the final payment
or other liquidation (or any advance with respect thereto) of the last Mortgage
Loan or REO Property remaining in the Trust Fund, and (ii) the purchase by the
Depositor, the Master Servicer, the Special Servicer or the Holders of Class R-I
Certificates
A-10-6
<PAGE>
representing a majority Percentage Interest in such Class, at a price determined
as provided in the Agreement, of all Mortgage Loans and any REO Properties
remaining in the Trust Fund. The Agreement permits, but does not require, the
Depositor, the Master Servicer, or such Holders to purchase from the Trust Fund
all Mortgage Loans and any REO Properties remaining therein at such time as the
aggregate Stated Principal Balance of the Mortgage Pool is less than 3% of the
aggregate Cut-off Date Principal Balance of the Mortgage Pool specified on the
face hereof. The exercise of such right will effect early retirement of the
Certificates.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer, the Trustee and the Fiscal
Agent thereunder and the rights of the Certificateholders thereunder, at any
time by the Depositor, the Master Servicer, the Special Servicer, the Trustee
and the Fiscal Agent with the consent of the Holders of Certificates entitled to
at least 51% of the Voting Rights allocated to the affected Classes. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain circumstances,
including any amendment necessary to maintain the status of REMIC I, REMIC II or
REMIC III as a REMIC, without the consent of the Holders of any of the
Certificates.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it will
look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal laws of
the State of New York applicable to agreements made and to be performed in said
State, and the obligations, rights and remedies of the Holder hereof shall be
determined in accordance with such laws.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
LaSalle National Bank,
as Trustee
By:_________________________________
Authorized Officer
A-10-7
<PAGE>
CERTIFICATE OF AUTHENTICATION
This is one of the Class G Certificates referred to in the within-mentioned
Agreement.
Dated:
LaSalle National Bank,
as Certificate Registrar
By:_________________________________
Authorized Officer
A-10-8
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(please print or typewrite name and address
including postal zip code of assignee)
the beneficial ownership interest in the Trust Fund evidenced by the within
Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage
Pass-Through Certificate of a like Percentage Interest and Class to the above
named assignee and delivery of such Commercial Mortgage Pass-Through Certificate
to the following address:
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
Dated:____________
-------------------------------------
Signature by or on behalf of Assignor
-------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise,
in immediately available funds, to________________________________ for the
account of________________________________________________________________.
Distributions made by check (such check to be made payable to
____________________) and all applicable statements and notices should be mailed
to__________________________________________.
This information is provided by ___________________________, the assignee
named above, or ____________________________________, as its agent.
A-10-9
<PAGE>
EXHIBIT A-11
FORM OF CLASS H CERTIFICATE
CLASS H COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 1997-C1
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool (the "Mortgage Pool") of multifamily and
commercial mortgage loans (the "Mortgage Loans"), such pool being formed and
sold by
MORGAN STANLEY CAPITAL I INC.
<TABLE>
<S> <C>
Pass-Through Rate: Certificate Principal Balance of this
6.8500% per annum Class H Certificate as of the
Issue Date: $______________
Date of Pooling and Servicing Class Principal Balance of all the Class H
Agreement: March 1, 1997 Certificates as of the Issue Date:
$20,821,000
Cut-off Date: March 1, 1997 Aggregate unpaid principal balance of the
Issue Date: March 26, 1997 Mortgage Pool as of the Cut-off Date, after
deducting payments of principal due on or before
such date, whether or not received: $640,657,923
First Distribution Date:
April 15, 1997
Master Servicer and Special Servicer: Trustee: LaSalle National Bank
GMAC Commercial Mortgage Corporation CUSIP No.: 61745M AS 2
Certificate No. H-__
</TABLE>
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR, THE
TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
A-11-1
<PAGE>
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN MORGAN
STANLEY CAPITAL I INC., GMAC COMMERCIAL MORTGAGE CORPORATION, LASALLE NATIONAL
BANK, ABN AMRO BANK N.V. OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1A, CLASS A-1B, CLASS A-1C, CLASS
A-2, CLASS IO-1, CLASS IO-2, CLASS B, CLASS C, CLASS D, CLASS E, CLASS F AND
CLASS G CERTIFICATES OF THE SAME SERIES, AS AND TO THE EXTENT PROVIDED IN THE
POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES
LAWS OF ANY STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE
WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION
WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH
THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO
HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN TO AN EMPLOYEE BENEFIT
PLAN OR OTHER RETIREMENT ARRANGEMENT SUBJECT TO THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR THE INTERNAL REVENUE CODE OF 1986
(THE "CODE"), OR TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS
CERTIFICATE OR ANY INTEREST HEREIN ON BEHALF OF, AS NAMED FIDUCIARY OF, AS
TRUSTEE OF, OR WITH ASSETS OF ANY SUCH EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT, WILL BE REGISTERED EXCEPT IN COMPLIANCE WITH THE PROCEDURES
DESCRIBED HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE. THE
FOLLOWING INFORMATION IS PROVIDED SOLELY FOR THE PURPOSES OF APPLYING THE U.S.
FEDERAL INCOME TAX ORIGINAL ISSUE DISCOUNT ("OID") RULES TO THIS CERTIFICATE.
THE ISSUE DATE OF THIS CERTIFICATE IS MARCH 26, 1997. ASSUMING THAT THE MORTGAGE
LOANS PREPAY AT AN ASSUMED RATE OF PREPAYMENT USED SOLELY FOR THE PURPOSES OF
APPLYING THE OID RULES TO THE CERTIFICATES EQUAL TO A CPR (WITHIN THE MEANING OF
THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN) OF 5% DURING THE
RESPECTIVE PERIODS WHEN VOLUNTARY PREPAYMENTS OF PRINCIPAL THEREON ARE PERMITTED
A-11-2
<PAGE>
WITHOUT THE IMPOSITION OF A PREPAYMENT PREMIUM BASED ON A YIELD MAINTENANCE
FORMULA (THE "PREPAYMENT ASSUMPTION"), THIS CERTIFICATE HAS BEEN ISSUED WITH NO
MORE THAN $412.32 OF OID PER $1000 OF INITIAL CERTIFICATE PRINCIPAL BALANCE, THE
YIELD TO MATURITY IS 13.7084% PER ANNUM AND THE AMOUNT OF OID ATTRIBUTABLE TO
THE INITIAL ACCRUAL PERIOD IS NO MORE THAN $0.53 PER $1000 OF INITIAL
CERTIFICATE PRINCIPAL BALANCE, COMPUTED UNDER THE EXACT METHOD. NO
REPRESENTATION IS MADE THAT THE MORTGAGE LOANS WILL PREPAY AT A RATE BASED ON
THE PREPAYMENT ASSUMPTION OR AT ANY OTHER RATE.
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH HEREIN FOLLOWING RETIREMENT OF THE
CLASS A-1A, CLASS A-1B, CLASS A-1C, CLASS A-2, CLASS B, CLASS C, CLASS D, CLASS
E, CLASS F AND CLASS G CERTIFICATES OF THE SAME SERIES. IN ADDITION, FOLLOWING
THE DATE ON WHICH THE AGGREGATE CERTIFICATE PRINCIPAL BALANCE OF THE CLASS J
CERTIFICATES IS REDUCED TO ZERO, THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE REDUCED IN CONNECTION WITH LOSSES ON THE MORTGAGE LOANS AND
CERTAIN UNANTICIPATED EXPENSES. ACCORDINGLY, THE OUTSTANDING CERTIFICATE
PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE.
This certifies that _______________________________________ is the
registered owner of the Percentage Interest evidenced by this Class H
Certificate (obtained by dividing the principal balance of this Class H
Certificate (its "Certificate Principal Balance") as of the Issue Date by the
aggregate principal balance of all the Class H Certificates (their "Class
Principal Balance") as of the Issue Date) in that certain beneficial ownership
interest, evidenced by all the Class H Certificates, in the Trust Fund created
pursuant to a Pooling and Servicing Agreement, dated as specified above (the
"Agreement"), between 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, the capitalized terms used herein have the
respective meanings assigned in the Agreement. This Certificate is issued under
and is subject to the terms, provisions and conditions of the Agreement, to
which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on the
15th day of each month or, if such 15th day is not a Business Day, the Business
Day immediately following (each, a "Distribution Date"), commencing on the First
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"), in an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed to the Holders of the
Class H Certificates on the applicable Distribution Date pursuant to the
Agreement. All distributions made under the Agreement on any
A-11-3
<PAGE>
Class H Certificate will be made by the Trustee by wire transfer in immediately
available funds to the account of the Person entitled thereto at a bank or other
entity having appropriate facilities therefor, if such Certificateholder shall
have provided the Trustee with wiring instructions on or prior to the Record
Date for such distribution (which wiring instructions may be in the form of a
standing order applicable to all subsequent distributions as well) or otherwise
by check mailed to the address of such Certificateholder appearing in the
Certificate Register. Notwithstanding the above, the final distribution on this
Certificate (determined without regard to any possible future reimbursement of
any Realized Loss or Expense Loss previously allocated to this Certificate) will
be made after due notice by the Trustee of the pendency of such distribution and
only upon presentation and surrender of this Certificate at the offices of the
Certificate Registrar appointed as provided in the Agreement or such other
location as may be specified in such notice. Also notwithstanding the foregoing,
any distribution that may be made with respect to this Certificate in
reimbursement of any Realized Loss or Expense Loss previously allocated to this
Certificate, which reimbursement is to occur after the date on which this
Certificate is surrendered as contemplated by the preceding sentence, will be
made by check mailed to the address of the Holder that surrenders this
Certificate as such address last appeared in the Certificate Register or to any
such other address of which the Trustee is subsequently notified in writing.
Any distribution to the Holder of this Certificate in reduction of the
Certificate Principal Balance hereof is binding on such Holder and all future
Holders of this Certificate and any Certificate issued upon the transfer hereof
or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Depositor's Mortgage Pass-Through Certificates, Series 1997-C1 (the
"Certificates") are limited in right of distribution to certain collections and
recoveries respecting the Mortgage Loans, all as more specifically set forth
herein and in the Agreement. As provided in the Agreement, withdrawals from the
Collection Account and the Distribution Account may be made from time to time
for purposes other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
The Class H Certificates are issuable in fully registered form only,
without coupons, in minimum denominations specified in the Agreement. As
provided in the Agreement and subject to certain limitations therein set forth,
Class H Certificates are exchangeable for new Class H Certificates in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and
A-11-4
<PAGE>
thereupon one or more new Class H Certificates in authorized denominations
evidencing the same aggregate Percentage Interest will be issued to the
designated transferee or transferees.
No transfer, sale, pledge or other disposition of any Class H Certificate
or interest therein shall be made unless that transfer, sale, pledge or other
disposition is exempt from the registration and/or qualification requirements of
the Securities Act and any applicable state securities laws, or is otherwise
made in accordance with the Securities Act and such state securities laws. If a
transfer of any Class H Certificate held as a Definitive Certificate is to be
made without registration under the Securities Act (other than in connection
with the initial issuance of the Certificates or a transfer of such Class H
Certificate by the Depositor or any of its Affiliates), then the Certificate
Registrar shall refuse to register such transfer unless it receives (and upon
receipt, may conclusively rely upon) either: (i) a certificate from the
Certificateholder desiring to effect such transfer substantially in the form
attached to the Agreement as Exhibit D-1 and a certificate from such
Certificateholder's prospective transferee substantially in the form attached to
the Agreement either as Exhibit D-2A or as Exhibit D-2B; or (ii) an Opinion of
Counsel satisfactory to the Trustee to the effect that such transfer may be made
without registration under the Securities Act (which Opinion of Counsel shall
not be an expense of the Trust Fund or of the Depositor, the Master Servicer,
the Special Servicer, the Trustee or the Certificate Registrar in their
respective capacities as such), together with the written certification(s) as to
the facts surrounding such transfer on which such Opinion of Counsel is based.
If a transfer of any interest in a Class H Certificate that constitutes a
Book-Entry Certificate is to be made without registration under the Securities
Act (other than in connection with the initial issuance of the Certificates or a
transfer of any interest in such Class H Certificate by the Depositor or any of
its Affiliates), then the Certificate Owner desiring to effect such transfer
shall be required to obtain either (i) a certificate from such Certificate
Owner's prospective Transferee substantially in the form attached to the
Agreement as Exhibit D-3A or as Exhibit D-3B, or (ii) an Opinion of Counsel to
the effect that such transfer may be made without registration under the
Securities Act. None of the Depositor, the Trustee or the Certificate Registrar
is obligated to register or qualify any Class H Certificates under the
Securities Act or any other securities law or to take any action not otherwise
required under this Agreement to permit the transfer of any Class H Certificate
or interest therein without registration or qualification. Any Certificateholder
or Certificate Owner desiring to effect a transfer of Class H Certificates or
interests therein shall, and does hereby agree to, indemnify, the Depositor, the
Underwriter, the Trustee, the Master Servicer, the Special Servicer and the
Certificate Registrar against any liability that may result if the transfer is
not exempt from such registration or qualification or is not made in accordance
with such federal and state laws.
No transfer of a Class H Certificate or any interest therein shall be made
(A) to any employee benefit plan or other retirement arrangement, including
individual retirement accounts and annuities, Keogh plans and collective
investment funds and separate accounts in which such plans, accounts or
arrangements are invested, including, without limitation, insurance company
general accounts, that is subject to ERISA or the Code (each, a "Plan"), or (B)
to any Person who is directly or indirectly purchasing such Certificate or
interest therein on behalf of, as named fiduciary of, as trustee of, or with
assets of a Plan, unless: (i) in the case of a Certificate that
A-11-5
<PAGE>
constitutes a Book-Entry Certificate, the purchase and holding of such
Certificate or interest therein is exempt from the prohibited transaction
provisions of Section 406 of ERISA and Section 4975 of the Code under Section I
and III of Prohibited Transaction Class Exemption 95-60; or (ii) in the case of
a Class H Certificate that is held as a Definitive Certificate, the prospective
Transferee provides the Certificate Registrar with a certification of facts and
an Opinion of Counsel which establish to the satisfaction of the Trustee that
such transfer will not result in a violation of Section 406 of ERISA or Section
4975 of the Code or result in the imposition of an excise tax under Section 4975
of the Code or subject the Depositor, the Trustee, the Fiscal Agent, the Master
Servicer or the Special Servicer to any obligation in addition to those
undertaken in the Agreement. Each Person who acquires any Class H Certificate or
interest therein (unless it shall have acquired such Certificate or interest
therein from the Depositor or an Affiliate thereof or unless it shall have
delivered to the Certificate Registrar the certification of facts and Opinion of
Counsel referred to in clause (ii) of the preceding sentence) shall be required
to deliver to the Certificate Registrar (or, in the case of an interest in a
Book-Entry Certificate, to the Certificate Owner that is transferring such
interest) a certification to the effect that: (i) it is neither a Plan nor any
Person who is directly or indirectly purchasing such Class H Certificate or
interest therein on behalf of, as named fiduciary of, as trustee of, or with
assets of a Plan; or (ii) the purchase and holding of such Certificate or
interest therein by such person is exempt from the prohibited transaction
provisions of Section 406 of ERISA and Section 4975 of the Code under Section I
and II of Prohibited Transaction Class Exemption 95-60.
No service charge will be imposed for any registration of transfer or
exchange of Class H Certificates, but the Trustee or the Certificate Registrar
may require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of Class
H Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
Prior to due presentment of this Certificate for registration of transfer,
the Depositor, the Master Servicer, the Special Servicer, the Trustee, the
Fiscal Agent, the Certificate Registrar and any agents 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 Fiscal Agent,
the Special Servicer, the Trustee, the Certificate Registrar or any such agent
shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall terminate
upon distribution (or provision for distribution) to the Certificateholders of
all amounts held by or on behalf of the Trustee and required to be distributed
to them pursuant to the Agreement following the earlier of (i) the final payment
or other liquidation (or any advance with respect thereto) of the last Mortgage
Loan or REO Property remaining in the Trust Fund, and (ii) the purchase by the
Depositor, the Master Servicer, the Special Servicer or the Holders of Class R-I
Certificates
A-11-6
<PAGE>
representing a majority Percentage Interest in such Class, at a price determined
as provided in the Agreement, of all Mortgage Loans and any REO Properties
remaining in the Trust Fund. The Agreement permits, but does not require, the
Depositor, the Master Servicer, or such Holders to purchase from the Trust Fund
all Mortgage Loans and any REO Properties remaining therein at such time as the
aggregate Stated Principal Balance of the Mortgage Pool is less than 3% of the
aggregate Cut-off Date Principal Balance of the Mortgage Pool specified on the
face hereof. The exercise of such right will effect early retirement of the
Certificates.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer, the Trustee and the Fiscal
Agent thereunder and the rights of the Certificateholders thereunder, at any
time by the Depositor, the Master Servicer, the Special Servicer, the Trustee
and the Fiscal Agent with the consent of the Holders of Certificates entitled to
at least 51% of the Voting Rights allocated to the affected Classes. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain circumstances,
including any amendment necessary to maintain the status of REMIC I, REMIC II or
REMIC III as a REMIC, without the consent of the Holders of any of the
Certificates.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it will
look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal laws of
the State of New York applicable to agreements made and to be performed in said
State, and the obligations, rights and remedies of the Holder hereof shall be
determined in accordance with such laws.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
LaSalle National Bank,
as Trustee
By:_________________________________
Authorized Officer
A-11-7
<PAGE>
CERTIFICATE OF AUTHENTICATION
This is one of the Class H Certificates referred to in the within-mentioned
Agreement.
Dated:
LaSalle National Bank,
as Certificate Registrar
By:_________________________________
Authorized Officer
A-11-8
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(please print or typewrite name and address
including postal zip code of assignee)
the beneficial ownership interest in the Trust Fund evidenced by the within
Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage
Pass-Through Certificate of a like Percentage Interest and Class to the above
named assignee and delivery of such Commercial Mortgage Pass-Through Certificate
to the following address:
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
Dated:____________
-------------------------------------
Signature by or on behalf of Assignor
-------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise,
in immediately available funds, to________________________________ for the
account of________________________________________________________________.
Distributions made by check (such check to be made payable to
____________________) and all applicable statements and notices should be mailed
to__________________________________________.
This information is provided by ___________________________, the assignee
named above, or ____________________________________, as its agent.
A-11-9
<PAGE>
EXHIBIT A-12
FORM OF CLASS J CERTIFICATE
CLASS J COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 1997-C1
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool (the "Mortgage Pool") of multifamily and
commercial mortgage loans (the "Mortgage Loans"), such pool being formed and
sold by
MORGAN STANLEY CAPITAL I INC.
<TABLE>
<S> <C>
Pass-Through Rate: Certificate Principal Balance of this
6.8500% per annum Class J Certificate as of the
Issue Date: $______________
Date of Pooling and Servicing Class Principal Balance of all the Class J
Agreement: March 1, 1997 Certificates as of the Issue Date:
$25,628,439
Cut-off Date: March 1, 1997 Aggregate unpaid principal balance of the
Issue Date: March 26, 1997 Mortgage Pool as of the Cut-off Date, after
deducting payments of principal due on or before
such date, whether or not received: $640,657,923
First Distribution Date:
April 15, 1997
Master Servicer and Special Servicer: Trustee: LaSalle National Bank
GMAC Commercial Mortgage Corporation CUSIP No.: 61745M AT 0
Certificate No. J-__
</TABLE>
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR, THE
TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
A-12-1
<PAGE>
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN MORGAN
STANLEY CAPITAL I INC., GMAC COMMERCIAL MORTGAGE CORPORATION, LASALLE NATIONAL
BANK, ABN AMRO BANK N.V. OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1A, CLASS A-1B, CLASS A-1C, CLASS
A-2, CLASS IO-1, CLASS IO-2, CLASS B, CLASS C, CLASS D, CLASS E, CLASS F, CLASS
G AND CLASS H CERTIFICATES OF THE SAME SERIES, AS AND TO THE EXTENT PROVIDED IN
THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES
LAWS OF ANY STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE
WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION
WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH
THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO
HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN TO AN EMPLOYEE BENEFIT
PLAN OR OTHER RETIREMENT ARRANGEMENT SUBJECT TO THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR THE INTERNAL REVENUE CODE OF 1986
(THE "CODE"), OR TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS
CERTIFICATE OR ANY INTEREST HEREIN ON BEHALF OF, AS NAMED FIDUCIARY OF, AS
TRUSTEE OF, OR WITH ASSETS OF ANY SUCH EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT, WILL BE REGISTERED EXCEPT IN COMPLIANCE WITH THE PROCEDURES
DESCRIBED HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE. THE
FOLLOWING INFORMATION IS PROVIDED SOLELY FOR THE PURPOSES OF APPLYING THE U.S.
FEDERAL INCOME TAX ORIGINAL ISSUE DISCOUNT ("OID") RULES TO THIS CERTIFICATE.
THE ISSUE DATE OF THIS CERTIFICATE IS MARCH 26, 1997. ASSUMING THAT THE MORTGAGE
LOANS PREPAY AT AN ASSUMED RATE OF PREPAYMENT USED SOLELY FOR THE PURPOSES OF
APPLYING THE OID RULES TO THE CERTIFICATES EQUAL TO A CPR (WITHIN THE MEANING OF
THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN) OF 5% DURING THE
RESPECTIVE PERIODS WHEN
A-12-2
<PAGE>
VOLUNTARY PREPAYMENTS OF PRINCIPAL THEREON ARE PERMITTED WITHOUT THE IMPOSITION
OF A PREPAYMENT PREMIUM BASED ON A YIELD MAINTENANCE FORMULA (THE "PREPAYMENT
ASSUMPTION"), THIS CERTIFICATE HAS BEEN ISSUED WITH NO MORE THAN $668.22 OF OID
PER $1000 OF INITIAL CERTIFICATE PRINCIPAL BALANCE, THE YIELD TO MATURITY IS
22.8233% PER ANNUM AND THE AMOUNT OF OID ATTRIBUTABLE TO THE INITIAL ACCRUAL
PERIOD IS NO MORE THAN $0.21 PER $1000 OF INITIAL CERTIFICATE PRINCIPAL BALANCE,
COMPUTED UNDER THE EXACT METHOD. NO REPRESENTATION IS MADE THAT THE MORTGAGE
LOANS WILL PREPAY AT A RATE BASED ON THE PREPAYMENT ASSUMPTION OR AT ANY OTHER
RATE.
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH HEREIN FOLLOWING RETIREMENT OF THE
CLASS A-1A, CLASS A-1B, CLASS A-1C, CLASS A-2, CLASS B, CLASS C, CLASS D, CLASS
E, CLASS F, CLASS G AND CLASS H CERTIFICATES OF THE SAME SERIES. IN ADDITION,
THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE REDUCED IN
CONNECTION WITH LOSSES ON THE MORTGAGE LOANS AND CERTAIN UNANTICIPATED EXPENSES.
ACCORDINGLY, THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME
MAY BE LESS THAN THE AMOUNT SHOWN ABOVE.
This certifies that _______________________________________ is the
registered owner of the Percentage Interest evidenced by this Class J
Certificate (obtained by dividing the principal balance of this Class J
Certificate (its "Certificate Principal Balance") as of the Issue Date by the
aggregate principal balance of all the Class J Certificates (their "Class
Principal Balance") as of the Issue Date) in that certain beneficial ownership
interest, evidenced by all the Class J Certificates, in the Trust Fund created
pursuant to a Pooling and Servicing Agreement, dated as specified above (the
"Agreement"), between 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, the capitalized terms used herein have the
respective meanings assigned in the Agreement. This Certificate is issued under
and is subject to the terms, provisions and conditions of the Agreement, to
which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on the
15th day of each month or, if such 15th day is not a Business Day, the Business
Day immediately following (each, a "Distribution Date"), commencing on the First
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"), in an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed to the Holders of the
Class J Certificates on the applicable Distribution Date pursuant to the
Agreement. All distributions made under the Agreement on any
A-12-3
<PAGE>
Class J Certificate will be made by the Trustee by wire transfer in immediately
available funds to the account of the Person entitled thereto at a bank or other
entity having appropriate facilities therefor, if such Certificateholder shall
have provided the Trustee with wiring instructions on or prior to the Record
Date for such distribution (which wiring instructions may be in the form of a
standing order applicable to all subsequent distributions as well) or otherwise
by check mailed to the address of such Certificateholder appearing in the
Certificate Register. Notwithstanding the above, the final distribution on this
Certificate (determined without regard to any possible future reimbursement of
any Realized Loss or Expense Loss previously allocated to this Certificate) will
be made after due notice by the Trustee of the pendency of such distribution and
only upon presentation and surrender of this Certificate at the offices of the
Certificate Registrar appointed as provided in the Agreement or such other
location as may be specified in such notice. Also notwithstanding the foregoing,
any distribution that may be made with respect to this Certificate in
reimbursement of any Realized Loss or Expense Loss previously allocated to this
Certificate, which reimbursement is to occur after the date on which this
Certificate is surrendered as contemplated by the preceding sentence, will be
made by check mailed to the address of the Holder that surrenders this
Certificate as such address last appeared in the Certificate Register or to any
such other address of which the Trustee is subsequently notified in writing.
Any distribution to the Holder of this Certificate in reduction of the
Certificate Principal Balance hereof is binding on such Holder and all future
Holders of this Certificate and any Certificate issued upon the transfer hereof
or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Depositor's Mortgage Pass-Through Certificates, Series 1997-C1 (the
"Certificates") are limited in right of distribution to certain collections and
recoveries respecting the Mortgage Loans, all as more specifically set forth
herein and in the Agreement. As provided in the Agreement, withdrawals from the
Collection Account and the Distribution Account may be made from time to time
for purposes other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
The Class J Certificates are issuable in fully registered form only,
without coupons, in minimum denominations specified in the Agreement. As
provided in the Agreement and subject to certain limitations therein set forth,
Class J Certificates are exchangeable for new Class J Certificates in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and
A-12-4
<PAGE>
thereupon one or more new Class J Certificates in authorized denominations
evidencing the same aggregate Percentage Interest will be issued to the
designated transferee or transferees.
No transfer, sale, pledge or other disposition of any Class J Certificate
or interest therein shall be made unless that transfer, sale, pledge or other
disposition is exempt from the registration and/or qualification requirements of
the Securities Act and any applicable state securities laws, or is otherwise
made in accordance with the Securities Act and such state securities laws. If a
transfer of any Class J Certificate held as a Definitive Certificate is to be
made without registration under the Securities Act (other than in connection
with the initial issuance of the Certificates or a transfer of such Class J
Certificate by the Depositor or any of its Affiliates), then the Certificate
Registrar shall refuse to register such transfer unless it receives (and upon
receipt, may conclusively rely upon) either: (i) a certificate from the
Certificateholder desiring to effect such transfer substantially in the form
attached to the Agreement as Exhibit D-1 and a certificate from such
Certificateholder's prospective transferee substantially in the form attached to
the Agreement either as Exhibit D-2A or as Exhibit D-2B; or (ii) an Opinion of
Counsel satisfactory to the Trustee to the effect that such transfer may be made
without registration under the Securities Act (which Opinion of Counsel shall
not be an expense of the Trust Fund or of the Depositor, the Master Servicer,
the Special Servicer, the Trustee or the Certificate Registrar in their
respective capacities as such), together with the written certification(s) as to
the facts surrounding such transfer on which such Opinion of Counsel is based.
If a transfer of any interest in a Class J Certificate that constitutes a
Book-Entry Certificate is to be made without registration under the Securities
Act (other than in connection with the initial issuance of the Certificates or a
transfer of any interest in such Class J Certificate by the Depositor or any of
its Affiliates), then the Certificate Owner desiring to effect such transfer
shall be required to obtain either (i) a certificate from such Certificate
Owner's prospective Transferee substantially in the form attached to the
Agreement as Exhibit D-3A or as Exhibit D-3B, or (ii) an Opinion of Counsel to
the effect that such transfer may be made without registration under the
Securities Act. None of the Depositor, the Trustee or the Certificate Registrar
is obligated to register or qualify any Class J Certificates under the
Securities Act or any other securities law or to take any action not otherwise
required under this Agreement to permit the transfer of any Class J Certificate
or interest therein without registration or qualification. Any Certificateholder
or Certificate Owner desiring to effect a transfer of Class J Certificates or
interests therein shall, and does hereby agree to, indemnify, the Depositor, the
Underwriter, the Trustee, the Master Servicer, the Special Servicer and the
Certificate Registrar against any liability that may result if the transfer is
not exempt from such registration or qualification or is not made in accordance
with such federal and state laws.
No transfer of a Class J Certificate or any interest therein shall be made
(A) to any employee benefit plan or other retirement arrangement, including
individual retirement accounts and annuities, Keogh plans and collective
investment funds and separate accounts in which such plans, accounts or
arrangements are invested, including, without limitation, insurance company
general accounts, that is subject to ERISA or the Code (each, a "Plan"), or (B)
to any Person who is directly or indirectly purchasing such Certificate or
interest therein on behalf of, as named fiduciary of, as trustee of, or with
assets of a Plan, unless: (i) in the case of a Certificate that
A-12-5
<PAGE>
constitutes a Book-Entry Certificate, the purchase and holding of such
Certificate or interest therein is exempt from the prohibited transaction
provisions of Section 406 of ERISA and Section 4975 of the Code under Section I
and III of Prohibited Transaction Class Exemption 95-60; or (ii) in the case of
a Class J Certificate that is held as a Definitive Certificate, the prospective
Transferee provides the Certificate Registrar with a certification of facts and
an Opinion of Counsel which establish to the satisfaction of the Trustee that
such transfer will not result in a violation of Section 406 of ERISA or Section
4975 of the Code or result in the imposition of an excise tax under Section 4975
of the Code or subject the Depositor, the Trustee, the Fiscal Agent, the Master
Servicer or the Special Servicer to any obligation in addition to those
undertaken in the Agreement. Each Person who acquires any Class J Certificate or
interest therein (unless it shall have acquired such Certificate or interest
therein from the Depositor or an Affiliate thereof or unless it shall have
delivered to the Certificate Registrar the certification of facts and Opinion of
Counsel referred to in clause (ii) of the preceding sentence) shall be required
to deliver to the Certificate Registrar (or, in the case of an interest in a
Book-Entry Certificate, to the Certificate Owner that is transferring such
interest) a certification to the effect that: (i) it is neither a Plan nor any
Person who is directly or indirectly purchasing such Class J Certificate or
interest therein on behalf of, as named fiduciary of, as trustee of, or with
assets of a Plan; or (ii) the purchase and holding of such Certificate or
interest therein by such person is exempt from the prohibited transaction
provisions of Section 406 of ERISA and Section 4975 of the Code under Section I
and II of Prohibited Transaction Class Exemption 95-60.
No service charge will be imposed for any registration of transfer or
exchange of Class J Certificates, but the Trustee or the Certificate Registrar
may require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of Class
J Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
Prior to due presentment of this Certificate for registration of transfer,
the Depositor, the Master Servicer, the Special Servicer, the Trustee, the
Fiscal Agent, the Certificate Registrar and any agents 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 or any such
agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall terminate
upon distribution (or provision for distribution) to the Certificateholders of
all amounts held by or on behalf of the Trustee and required to be distributed
to them pursuant to the Agreement following the earlier of (i) the final payment
or other liquidation (or any advance with respect thereto) of the last Mortgage
Loan or REO Property remaining in the Trust Fund, and (ii) the purchase by the
Depositor, the Master Servicer, the Special Servicer or the Holders of Class R-I
Certificates
A-12-6
<PAGE>
representing a majority Percentage Interest in such Class, at a price determined
as provided in the Agreement, of all Mortgage Loans and any REO Properties
remaining in the Trust Fund. The Agreement permits, but does not require, the
Depositor, the Master Servicer, or such Holders to purchase from the Trust Fund
all Mortgage Loans and any REO Properties remaining therein at such time as the
aggregate Stated Principal Balance of the Mortgage Pool is less than 3% of the
aggregate Cut-off Date Principal Balance of the Mortgage Pool specified on the
face hereof. The exercise of such right will effect early retirement of the
Certificates.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer, the Trustee and the Fiscal
Agent thereunder and the rights of the Certificateholders thereunder, at any
time by the Depositor, the Master Servicer, the Special Servicer, the Trustee
and the Fiscal Agent with the consent of the Holders of Certificates entitled to
at least 51% of the Voting Rights allocated to the affected Classes. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain circumstances,
including any amendment necessary to maintain the status of REMIC I, REMIC II or
REMIC III as a REMIC, without the consent of the Holders of any of the
Certificates.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it will
look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal laws of
the State of New York applicable to agreements made and to be performed in said
State, and the obligations, rights and remedies of the Holder hereof shall be
determined in accordance with such laws.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
LaSalle National Bank,
as Trustee
By:_________________________________
Authorized Officer
A-12-7
<PAGE>
CERTIFICATE OF AUTHENTICATION
This is one of the Class J Certificates referred to in the within-mentioned
Agreement.
Dated:
LaSalle National Bank,
as Certificate Registrar
By:_________________________________
Authorized Officer
A-12-8
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(please print or typewrite name and address
including postal zip code of assignee)
the beneficial ownership interest in the Trust Fund evidenced by the within
Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage
Pass-Through Certificate of a like Percentage Interest and Class to the above
named assignee and delivery of such Commercial Mortgage Pass-Through Certificate
to the following address:
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
Dated:____________
-------------------------------------
Signature by or on behalf of Assignor
-------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise,
in immediately available funds, to________________________________ for the
account of________________________________________________________________.
Distributions made by check (such check to be made payable to
____________________) and all applicable statements and notices should be mailed
to__________________________________________.
This information is provided by ___________________________, the assignee
named above, or ____________________________________, as its agent.
A-12-9
<PAGE>
EXHIBIT A-13
FORM OF CLASS R-I CERTIFICATE
CLASS R-I COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 1997-C1
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool (the "Mortgage Pool") of multifamily and
commercial mortgage loans (the "Mortgage Loans"), such pool being formed and
sold by
MORGAN STANLEY CAPITAL I INC.
<TABLE>
<S> <C>
Date of Pooling and Servicing Percentage Interest evidenced by
Agreement: March 1, 1997 this Certificate in the related Class: ____%
Cut-off Date: March 1, 1997 Aggregate unpaid principal balance of the Mortgage
Pool as of the Cut-off Date, after deducting payments
Issue Date: March 26, 1997 of principal due on or before such date, whether or
not received: $640,657,923
First Distribution Date:
April 15, 1997
Master Servicer and Special Servicer: Trustee: LaSalle National Bank
GMAC Commercial Mortgage Corporation
Certificate No. R-I-__
</TABLE>
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN MORGAN
STANLEY CAPITAL I INC., GMAC COMMERCIAL MORTGAGE CORPORATION, LASALLE NATIONAL
BANK, ABN AMRO BANK N.V. OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1A, CLASS A-1B, CLASS A-1C, CLASS
A-2, CLASS IO-1, CLASS IO-2, CLASS B, CLASS C, CLASS D, CLASS E, CLASS F, CLASS
G, CLASS H AND CLASS J CERTIFICATES OF THE SAME SERIES, AS AND TO THE EXTENT
PROVIDED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE
A-13-1
<PAGE>
SECURITIES LAWS OF ANY STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS
CERTIFICATE WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A
TRANSACTION WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN TO AN EMPLOYEE BENEFIT
PLAN OR OTHER RETIREMENT ARRANGEMENT SUBJECT TO THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR THE INTERNAL REVENUE CODE OF 1986
(THE "CODE"), OR TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS
CERTIFICATE OR ANY INTEREST HEREIN ON BEHALF OF, AS NAMED FIDUCIARY OF, AS
TRUSTEE OF, OR WITH ASSETS OF ANY SUCH EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT, WILL BE REGISTERED EXCEPT IN COMPLIANCE WITH THE PROCEDURES
DESCRIBED HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "RESIDUAL
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
CONSEQUENTLY, TRANSFER OF THIS CERTIFICATE IS ALSO SUBJECT TO THE ADDITIONAL TAX
RELATED TRANSFER RESTRICTIONS DESCRIBED HEREIN. IF ANY PERSON BECOMES THE
REGISTERED HOLDER OF THIS CERTIFICATE IN VIOLATION OF SUCH TRANSFER
RESTRICTIONS, SUCH REGISTRATION SHALL BE DEEMED TO BE OF NO LEGAL FORCE OR
EFFECT WHATSOEVER AND SUCH PERSON SHALL NOT BE DEEMED TO BE A CERTIFICATEHOLDER
FOR ANY PURPOSE HEREUNDER OR UNDER THE POOLING AND SERVICING AGREEMENT REFERRED
TO HEREIN, INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OF DISTRIBUTIONS ON THIS
CERTIFICATE.
This certifies that _____________ is the registered owner of the Percentage
Interest evidenced by this Class R-I Certificate (as specified above) in that
certain beneficial ownership interest evidenced by all the Class R-I
Certificates in the Trust Fund created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), between 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, the capitalized
terms used herein have the respective meanings assigned in the Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on the
15th day of each month or, if such 15th day is not a Business Day, the Business
Day immediately following (each, a "Distribution Date"), commencing upon the
First Distribution Date specified above, to
A-13-2
<PAGE>
the Person in whose name this Certificate is registered at the close of business
on the last Business Day of the month immediately preceding the month of such
distribution (the "Record Date"), in an amount equal to the product of the
Percentage Interest evidenced by this Certificate and the amount required to be
distributed to the Holders of the Class R-I Certificates on the applicable
Distribution Date pursuant to the Agreement. All distributions made under the
Agreement on any Class R-I Certificate will be made by the Trustee by check
mailed to the address of the Person entitled thereto, as such name and address
appear in the Certificate Register. Notwithstanding the above, the final
distribution on this Certificate will be made after due notice by the Trustee of
the pendency of such distribution and only upon presentation and surrender of
this Certificate at the offices of the Certificate Registrar appointed as
provided in the Agreement or such other location as may be specified in such
notice.
The Depositor's Mortgage Pass-Through Certificates, Series 1997-C1 (the
"Certificates") are limited in right of distribution to certain collections and
recoveries respecting the Mortgage Loans, all as more specifically set forth
herein and in the Agreement. As provided in the Agreement, withdrawals from the
Collection Account and Distribution Account may be made from time to time for
purposes other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
The Class R-I Certificates are issuable in fully registered form only
without coupons in minimum denominations representing Percentage Interests
specified in the Agreement. As provided in the Agreement and subject to certain
limitations therein set forth, Class R-I Certificates are exchangeable for new
Class R-I Certificates in authorized denominations evidencing the same aggregate
Percentage Interest, as requested by the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Class R-I Certificates in authorized
denominations evidencing the same aggregate Percentage Interest will be issued
to the designated transferee or transferees.
No transfer, sale, pledge or other disposition of any Class R-I Certificate
or interest therein shall be made unless that transfer, sale, pledge or other
disposition is exempt from the registration and/or qualification requirements of
the Securities Act and any applicable state securities laws, or is otherwise
made in accordance with the Securities Act and such state securities laws. If a
transfer of any Class R-I Certificate is to be made without registration under
the Securities Act (other than in connection with the initial issuance of the
Certificates or a transfer of such Class R-I Certificate by the Depositor or any
of its Affiliates), then the Certificate Registrar shall refuse to register such
transfer unless it receives (and upon receipt, may
A-13-3
<PAGE>
conclusively rely upon) either: (i) a certificate from the Certificateholder
desiring to effect such transfer substantially in the form attached to the
Agreement as Exhibit D-1 and a certificate from such Certificateholder's
prospective transferee substantially in the form attached to the Agreement
either as Exhibit D-2A or as Exhibit D-2B; or (ii) an Opinion of Counsel
satisfactory to the Trustee to the effect that such transfer may be made without
registration under the Securities Act (which Opinion of Counsel shall not be an
expense of the Trust Fund or of the Depositor, the Master Servicer, the Special
Servicer, the Trustee or the Certificate Registrar in their respective
capacities as such), together with the written certification(s) as to the facts
surrounding such transfer on which such Opinion of Counsel is based. None of the
Depositor, the Trustee or the Certificate Registrar is obligated to register or
qualify any Class R-I Certificates under the Securities Act or any other
securities law or to take any action not otherwise required under this Agreement
to permit the transfer of any Class R-I Certificate or interest therein without
registration or qualification. Any Certificateholder or Certificate Owner
desiring to effect a transfer of Class R-I Certificates or interests therein
shall, and does hereby agree to, indemnify, the Depositor, the Underwriter, the
Trustee, the Master Servicer, the Special Servicer and the Certificate Registrar
against any liability that may result if the transfer is not exempt from such
registration or qualification or is not made in accordance with such federal and
state laws.
No transfer of a Class R-I Certificate or any interest therein shall be
made (A) to any employee benefit plan or other retirement arrangement, including
individual retirement accounts and annuities, Keogh plans and collective
investment funds and separate accounts in which such plans, accounts or
arrangements are invested, including, without limitation, insurance company
general accounts, that is subject to ERISA or the Code (each, a "Plan"), or (B)
to any Person who is directly or indirectly purchasing such Certificate or
interest therein on behalf of, as named fiduciary of, as trustee of, or with
assets of a Plan, unless: (i) the purchase and holding of such Certificate or
interest therein is exempt from the prohibited transaction provisions of Section
406 of ERISA and Section 4975 of the Code under Section I and III of Prohibited
Transaction Class Exemption 95-60; or (ii) the prospective Transferee provides
the Certificate Registrar with a certification of facts and an Opinion of
Counsel which establish to the satisfaction of the Trustee that such transfer
will not result in a violation of Section 406 of ERISA or Section 4975 of the
Code or result in the imposition of an excise tax under Section 4975 of the Code
or subject the Depositor, the Trustee, the Fiscal Agent, the Master Servicer or
the Special Servicer to any obligation in addition to those undertaken in the
Agreement. Each Person who acquires any Class R-I Certificate or interest
therein (unless it shall have acquired such Certificate or interest therein from
the Depositor or an Affiliate thereof or unless it shall have delivered to the
Certificate Registrar the certification of facts and Opinion of Counsel referred
to in clause (ii) of the preceding sentence) shall be required to deliver to the
Certificate Registrar a certification to the effect that: (i) it is neither a
Plan nor any Person who is directly or indirectly purchasing such Class R-I
Certificate or interest therein on behalf of, as named fiduciary of, as trustee
of, or with assets of a Plan; or (ii) the purchase and holding of such
Certificate or interest therein by such person is exempt from the prohibited
transaction provisions of Section 406 of ERISA and Section 4975 of the Code
under Section I and II of Prohibited Transaction Class Exemption 95-60.
A-13-4
<PAGE>
Each Person who has or who acquires any Ownership Interest in this
Certificate shall be deemed by the acceptance or acquisition of such Ownership
Interest to have agreed to be bound by the provisions of Section 3.3(e) of the
Agreement and, if any purported Transferee shall become a Holder of this
Certificate in violation of the provisions of such Section 3.3(e), to have
irrevocably authorized the Trustee under clause (ii)(A) of such Section 3.3(e)
to deliver payments to a Person other than such Person and to have irrevocably
authorized the Trustee under clause (ii)(B) of such Section 3.3(e) to negotiate
the terms of any mandatory sale and to execute all instruments of Transfer and
to do all other things necessary in connection with any such sale. Each Person
holding or acquiring any Ownership Interest in this Certificate must be a
Permitted Transferee and a United States Person and shall promptly notify the
Trustee of any change or impending change in its status as a Permitted
Transferee or United States Person. In connection with any proposed Transfer of
any Ownership Interest in this Certificate, the Trustee shall require delivery
to it, and shall not register the Transfer of this Certificate until its receipt
of, an affidavit and agreement substantially in the form attached as Exhibit
E-1A to the Agreement (a "Transfer Affidavit and Agreement") from the proposed
Transferee, in form and substance satisfactory to the Trustee, representing and
warranting, among other things, that such Transferee is a Permitted Transferee
and a United States Person, that it is not acquiring its Ownership Interest in
this Certificate as a nominee, trustee or agent for any Person that is not a
Permitted Transferee or is not a United States Person, that for so long as it
retains its Ownership Interest in this Certificate, it will endeavor to remain a
Permitted Transferee and a United States Person, and that it has reviewed the
provisions of Section 3.3(e) of the Agreement and agrees to be bound by them.
Notwithstanding the delivery of a Transfer Affidavit and Agreement by a proposed
Transferee, if the Trustee has actual knowledge that the proposed Transferee is
not a Permitted Transferee or is not a United States Person, the Trustee shall
not register the Transfer of an Ownership Interest in this Certificate to such
proposed Transferee.
Each Person holding or acquiring any Ownership Interest in this Certificate
shall agree (x) to require a Transfer Affidavit and Agreement from any
prospective Transferee to whom such Person attempts to transfer its Ownership
Interest herein and (y) not to transfer its Ownership Interest unless it
provides to the Trustee a certificate substantially in the form attached as
Exhibit E-1B to the Agreement stating that, among other things, it has no actual
knowledge that such prospective Transferee is not a Permitted Transferee or is
not a United States Person. Each Person holding or acquiring an Ownership
Interest in this Certificate, by purchasing such Ownership Interest herein,
agrees to give the Trustee written notice that it is a "pass-through interest
holder" within the meaning of temporary Treasury regulation Section
1.67-3T(a)(2)(i)(A) immediately upon acquiring such Ownership Interest, if it
is, or is holding such Ownership Interest on behalf of, a "pass-through interest
holder".
The provisions of Section 3.3(e) of the Agreement may be modified, added to
or eliminated, provided that there shall have been delivered to the Trustee the
following: (a) written notification from each Rating Agency to the effect that
the modification of, addition to or elimination of such provisions will not
cause such Rating Agency to withdraw, qualify or downgrade its then-current
rating of any Class of Certificates; and (b) an Opinion of Counsel, in form and
substance satisfactory to the Trustee and the Depositor, to the effect that such
A-13-5
<PAGE>
modification of, addition to or elimination of such provisions will not cause
any of REMIC I, REMIC II or REMIC III to (x) cease to qualify as a REMIC or (y)
be subject to an entity-level tax caused by the Transfer of any Class R-I
Certificate to a Person which is not a Permitted Transferee, or cause a Person
other than the prospective Transferee to be subject to a REMIC-related tax
caused by the Transfer of a Class R-I Certificate to a Person which is not a
Permitted Transferee.
A "Permitted Transferee" is any Transferee other than (i) the United
States, any State or political subdivision thereof, any possession of the United
States, or any agency or instrumentality of any of the foregoing (other than an
instrumentality which is a corporation if all of its activities are subject to
tax and, except for FHLMC, a majority of its board of directors is not selected
by such governmental unit), (ii) a foreign government, any international
organization, or any agency or instrumentality of any of the foregoing, (iii)
any organization (other than certain farmers' cooperatives described in Section
521 of the Code) which is exempt from the tax imposed by Chapter 1 of the Code
(including the tax imposed by Section 511 of the Code on unrelated business
taxable income), (iv) rural electric and telephone cooperatives described in
Section 1381(a)(2)(C) of the Code and (v) any other Person so designated by the
Trustee based upon an Opinion of Counsel that the holding of an Ownership
Interest in a Class R-I Certificate by such Person may cause the Trust Fund or
any Person having an Ownership Interest in any Class of Certificates (other than
such Person) to incur a liability for any federal tax imposed under the Code
that would not otherwise be imposed but for the Transfer of an Ownership
Interest in a Class R-I Certificate to such Person. The terms "United States",
"State" and "international organization" shall have the meanings set forth in
Section 7701 of the Code or successor provisions.
A "United States Person" is a citizen or resident of the United States, a
corporation, partnership or other entity created or organized in, or under the
laws of, the United States or any political subdivision thereof, or an estate or
trust whose income from sources without the United States is includable in gross
income for United States federal income tax purposes regardless of its
connection with the conduct of a trade or business within the United States.
No service charge will be imposed for any registration of transfer or
exchange of Class R-I Certificates, but the Trustee or the Certificate Registrar
may require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of Class
R-I Certificates.
Prior to due presentment of this Certificate for registration of transfer,
the Depositor, the Master Servicer, the Special Servicer, the Trustee, the
Certificate Registrar and any agents 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 Certificate Registrar or any such agent shall be affected by notice
to the contrary.
The Trust Fund and the obligations created by the Agreement shall terminate
upon distribution (or provision for distribution) to the Certificateholders of
all amounts held by or on
A-13-6
<PAGE>
behalf of the Trustee and required to be distributed to them pursuant to the
Agreement following the earlier of (i) the final payment or other liquidation
(or any advance with respect thereto) of the last Mortgage Loan or REO Property
remaining in the Trust Fund, and (ii) the purchase by the Depositor, the Master
Servicer, the Special Servicer or the Holders of Class R-I Certificates
representing a majority Percentage Interest in such Class at a price determined
as provided in the Agreement of all Mortgage Loans and any REO Properties
remaining in the Trust Fund. The Agreement permits, but does not require, the
Depositor, the Master Servicer, or such Holders to purchase from the Trust Fund
all Mortgage Loans and any REO Properties remaining therein at such time as the
aggregate Stated Principal Balance of the Mortgage Pool is less than 3% of the
aggregate Cut-off Date Principal Balance of the Mortgage Pool specified on the
face hereof. The exercise of such right will effect early retirement of the
Certificates.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer, the Trustee and the Fiscal
Agent thereunder and the rights of the Certificateholders thereunder, at any
time by the Depositor, the Master Servicer, the Special Servicer, the Trustee
and the Fiscal Agent with the consent of the Holders of Certificates entitled to
at least 51% of the Voting Rights allocated to the affected Classes. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain circumstances,
including any amendment necessary to maintain the status of REMIC I, REMIC II or
REMIC III as a REMIC, without the consent of the Holders of any of the
Certificates.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it will
look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal laws of
the State of New York applicable to agreements made and to be performed in said
State, and the obligations, rights and remedies of the Holder hereof shall be
determined in accordance with such laws.
A-13-7
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
LaSalle National Bank,
as Trustee
By:_________________________________
Authorized Officer
A-13-8
<PAGE>
CERTIFICATE OF AUTHENTICATION
This is one of the Class R-I Certificates referred to in the within-mentioned
Agreement.
Dated:
LaSalle National Bank,
as Certificate Registrar
By:_________________________________
Authorized Officer
A-13-9
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(please print or typewrite name and address
including postal zip code of assignee)
the beneficial ownership interest in the Trust Fund evidenced by the within
Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage
Pass-Through Certificate of a like Percentage Interest and Class to the above
named assignee and delivery of such Commercial Mortgage Pass-Through Certificate
to the following address:
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
Dated:____________
-------------------------------------
Signature by or on behalf of Assignor
-------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise,
in immediately available funds, to________________________________ for the
account of________________________________________________________________.
Distributions made by check (such check to be made payable to
____________________) and all applicable statements and notices should be mailed
to__________________________________________.
This information is provided by ___________________________, the assignee
named above, or ____________________________________, as its agent.
A-13-10
<PAGE>
EXHIBIT A-14
FORM OF CLASS R-II CERTIFICATE
CLASS R-II COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 1997-C1
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool (the "Mortgage Pool") of multifamily and
commercial mortgage loans (the "Mortgage Loans"), such pool being formed and
sold by
MORGAN STANLEY CAPITAL I INC.
<TABLE>
<S> <C>
Date of Pooling and Servicing Percentage Interest evidenced by
Agreement: March 1, 1997 this Certificate in the related Class: ____%
Cut-off Date: March 1, 1997 Aggregate unpaid principal balance of the Mortgage
Pool as of the Cut-off Date, after deducting payments
Issue Date: March 26, 1997 of principal due on or before such date, whether or
not received: $640,657,923
First Distribution Date:
April 15, 1997
Master Servicer and Special Servicer: Trustee: LaSalle National Bank
GMAC Commercial Mortgage Corporation
Certificate No. R-II-__
</TABLE>
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN MORGAN
STANLEY CAPITAL I INC., GMAC COMMERCIAL MORTGAGE CORPORATION, LASALLE NATIONAL
BANK, ABN AMRO BANK N.V. ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1A, CLASS A-1B, CLASS A-1C, CLASS
A-2, CLASS IO-1, CLASS IO-2, CLASS B, CLASS C, CLASS D, CLASS E, CLASS F, CLASS
G, CLASS H AND CLASS J CERTIFICATES OF THE SAME SERIES, AS AND TO THE EXTENT
PROVIDED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES
LAWS OF ANY STATE. ANY RESALE,
A-14-1
<PAGE>
TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH REGISTRATION OR
QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT REQUIRE SUCH
REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS OF SECTION
3.3 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN TO AN EMPLOYEE BENEFIT
PLAN OR OTHER RETIREMENT ARRANGEMENT SUBJECT TO THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR THE INTERNAL REVENUE CODE OF 1986
(THE "CODE"), OR TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS
CERTIFICATE OR ANY INTEREST HEREIN ON BEHALF OF, AS NAMED FIDUCIARY OF, AS
TRUSTEE OF, OR WITH ASSETS OF ANY SUCH EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT, WILL BE REGISTERED EXCEPT IN COMPLIANCE WITH THE PROCEDURES
DESCRIBED HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "RESIDUAL
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
CONSEQUENTLY, TRANSFER OF THIS CERTIFICATE IS ALSO SUBJECT TO THE ADDITIONAL TAX
RELATED TRANSFER RESTRICTIONS DESCRIBED HEREIN. IF ANY PERSON BECOMES THE
REGISTERED HOLDER OF THIS CERTIFICATE IN VIOLATION OF SUCH TRANSFER
RESTRICTIONS, SUCH REGISTRATION SHALL BE DEEMED TO BE OF NO LEGAL FORCE OR
EFFECT WHATSOEVER AND SUCH PERSON SHALL NOT BE DEEMED TO BE A CERTIFICATEHOLDER
FOR ANY PURPOSE HEREUNDER OR UNDER THE POOLING AND SERVICING AGREEMENT REFERRED
TO HEREIN, INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OF DISTRIBUTIONS ON THIS
CERTIFICATE.
This certifies that _____________ is the registered owner of the Percentage
Interest evidenced by this Class R-II Certificate (as specified above) in that
certain beneficial ownership interest evidenced by all the Class R-II
Certificates in the Trust Fund created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), between 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, the capitalized
terms used herein have the respective meanings assigned in the Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on the
15th day of each month or, if such 15th day is not a Business Day, the Business
Day immediately following (each, a "Distribution Date"), commencing upon the
First Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business
A-14-2
<PAGE>
Day of the month immediately preceding the month of such distribution (the
"Record Date"), in an amount equal to the product of the Percentage Interest
evidenced by this Certificate and the amount required to be distributed to the
Holders of the Class R-II Certificates on the applicable Distribution Date
pursuant to the Agreement. All distributions made under the Agreement on any
Class R-II Certificate will be made by the Trustee by check mailed to the
address of the Person entitled thereto, as such name and address appear in the
Certificate Register. Notwithstanding the above, the final distribution on this
Certificate will be made after due notice by the Trustee of the pendency of such
distribution and only upon presentation and surrender of this Certificate at the
offices of the Certificate Registrar appointed as provided in the Agreement or
such other location as may be specified in such notice.
The Depositor's Mortgage Pass-Through Certificates, Series 1997-C1 (the
"Certificates") are limited in right of distribution to certain collections and
recoveries respecting the Mortgage Loans, all as more specifically set forth
herein and in the Agreement. As provided in the Agreement, withdrawals from the
Collection Account and Distribution Account may be made from time to time for
purposes other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
The Class R-II Certificates are issuable in fully registered form only
without coupons in minimum denominations representing Percentage Interests
specified in the Agreement. As provided in the Agreement and subject to certain
limitations therein set forth, Class R-II Certificates are exchangeable for new
Class R-II Certificates in authorized denominations evidencing the same
aggregate Percentage Interest, as requested by the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Class R-II Certificates in authorized
denominations evidencing the same aggregate Percentage Interest will be issued
to the designated transferee or transferees.
No transfer, sale, pledge or other disposition of any Class R-II
Certificate or interest therein shall be made unless that transfer, sale, pledge
or other disposition is exempt from the registration and/or qualification
requirements of the Securities Act and any applicable state securities laws, or
is otherwise made in accordance with the Securities Act and such state
securities laws. If a transfer of any Class R-II Certificate held as a
Definitive Certificate is to be made without registration under the Securities
Act (other than in connection with the initial issuance of the Certificates or a
transfer of such Class R-II Certificate by the Depositor or any of its
Affiliates), then the Certificate Registrar shall refuse to register such
transfer unless it receives (and upon receipt, may conclusively rely upon)
either: (i) a certificate from the Certificateholder
A-14-3
<PAGE>
desiring to effect such transfer substantially in the form attached to the
Agreement as Exhibit D-1 and a certificate from such Certificateholder's
prospective transferee substantially in the form attached to the Agreement
either as Exhibit D-2A or as Exhibit D-2B; or (ii) an Opinion of Counsel
satisfactory to the Trustee to the effect that such transfer may be made without
registration under the Securities Act (which Opinion of Counsel shall not be an
expense of the Trust Fund or of the Depositor, the Master Servicer, the Special
Servicer, the Trustee or the Certificate Registrar in their respective
capacities as such), together with the written certification(s) as to the facts
surrounding such transfer on which such Opinion of Counsel is based. None of the
Depositor, the Trustee or the Certificate Registrar is obligated to register or
qualify any Class R-II Certificates under the Securities Act or any other
securities law or to take any action not otherwise required under this Agreement
to permit the transfer of any Class R-II Certificate or interest therein without
registration or qualification. Any Certificateholder or Certificate Owner
desiring to effect a transfer of Class R-II Certificates or interests therein
shall, and does hereby agree to, indemnify, the Depositor, the Underwriter, the
Trustee, the Master Servicer, the Special Servicer and the Certificate Registrar
against any liability that may result if the transfer is not exempt from such
registration or qualification or is not made in accordance with such federal and
state laws.
No transfer of a Class R-II Certificate or any interest therein shall be
made (A) to any employee benefit plan or other retirement arrangement, including
individual retirement accounts and annuities, Keogh plans and collective
investment funds and separate accounts in which such plans, accounts or
arrangements are invested, including, without limitation, insurance company
general accounts, that is subject to ERISA or the Code (each, a "Plan"), or (B)
to any Person who is directly or indirectly purchasing such Certificate or
interest therein on behalf of, as named fiduciary of, as trustee of, or with
assets of a Plan, unless: (i) the purchase and holding of such Certificate or
interest therein is exempt from the prohibited transaction provisions of Section
406 of ERISA and Section 4975 of the Code under Section I and III of Prohibited
Transaction Class Exemption 95-60; or (ii) the prospective Transferee provides
the Certificate Registrar with a certification of facts and an Opinion of
Counsel which establish to the satisfaction of the Trustee that such transfer
will not result in a violation of Section 406 of ERISA or Section 4975 of the
Code or result in the imposition of an excise tax under Section 4975 of the Code
or subject the Depositor, the Trustee, the Fiscal Agent, the Master Servicer or
the Special Servicer to any obligation in addition to those undertaken in the
Agreement. Each Person who acquires any Class R-II Certificate or interest
therein (unless it shall have acquired such Certificate or interest therein from
the Depositor or an Affiliate thereof or unless it shall have delivered to the
Certificate Registrar the certification of facts and Opinion of Counsel referred
to in clause (ii) of the preceding sentence) shall be required to deliver to the
Certificate Registrar a certification to the effect that: (i) it is neither a
Plan nor any Person who is directly or indirectly purchasing such Class R-II
Certificate or interest therein on behalf of, as named fiduciary of, as trustee
of, or with assets of a Plan; or (ii) the purchase and holding of such
Certificate or interest therein by such person is exempt from the prohibited
transaction provisions of Section 406 of ERISA and Section 4975 of the Code
under Section I and II of Prohibited Transaction Class Exemption 95-60.
A-14-4
<PAGE>
Each Person who has or who acquires any Ownership Interest in this
Certificate shall be deemed by the acceptance or acquisition of such Ownership
Interest to have agreed to be bound by the provisions of Section 3.3(e) of the
Agreement and, if any purported Transferee shall become a Holder of this
Certificate in violation of the provisions of such Section 3.3(e), to have
irrevocably authorized the Trustee under clause (ii)(A) of such Section 3.3(e)
to deliver payments to a Person other than such Person and to have irrevocably
authorized the Trustee under clause (ii)(B) of such Section 3.3(e) to negotiate
the terms of any mandatory sale and to execute all instruments of Transfer and
to do all other things necessary in connection with any such sale. Each Person
holding or acquiring any Ownership Interest in this Certificate must be a
Permitted Transferee and a United States Person and shall promptly notify the
Trustee of any change or impending change in its status as a Permitted
Transferee or United States Person. In connection with any proposed Transfer of
any Ownership Interest in this Certificate, the Trustee shall require delivery
to it, and shall not register the Transfer of this Certificate until its receipt
of, an affidavit and agreement substantially in the form attached as Exhibit
E-1A to the Agreement (a "Transfer Affidavit and Agreement") from the proposed
Transferee, in form and substance satisfactory to the Trustee, representing and
warranting, among other things, that such Transferee is a Permitted Transferee
and a United States Person, that it is not acquiring its Ownership Interest in
this Certificate as a nominee, trustee or agent for any Person that is not a
Permitted Transferee or is not a United States Person, that for so long as it
retains its Ownership Interest in this Certificate, it will endeavor to remain a
Permitted Transferee and a United States Person, and that it has reviewed the
provisions of Section 3.3(e) of the Agreement and agrees to be bound by them.
Notwithstanding the delivery of a Transfer Affidavit and Agreement by a proposed
Transferee, if the Trustee has actual knowledge that the proposed Transferee is
not a Permitted Transferee or is not a United States Person, the Trustee shall
not register the Transfer of an Ownership Interest in this Certificate to such
proposed Transferee.
Each Person holding or acquiring any Ownership Interest in this Certificate
shall agree (x) to require a Transfer Affidavit and Agreement from any
prospective Transferee to whom such Person attempts to transfer its Ownership
Interest herein and (y) not to transfer its Ownership Interest unless it
provides to the Trustee a certificate substantially in the form attached as
Exhibit E-1B to the Agreement stating that, among other things, it has no actual
knowledge that such prospective Transferee is not a Permitted Transferee or is
not a United States Person. Each Person holding or acquiring an Ownership
Interest in this Certificate, by purchasing such Ownership Interest herein,
agrees to give the Trustee written notice that it is a "pass-through interest
holder" within the meaning of temporary Treasury regulation Section
1.67-3T(a)(2)(i)(A) immediately upon acquiring such Ownership Interest, if it
is, or is holding such Ownership Interest on behalf of, a "pass-through interest
holder".
The provisions of Section 3.3(e) of the Agreement may be modified, added to
or eliminated, provided that there shall have been delivered to the Trustee the
following: (a) written notification from each Rating Agency to the effect that
the modification of, addition to or elimination of such provisions will not
cause such Rating Agency to withdraw, qualify or downgrade its then-current
rating of any Class of Certificates; and (b) an Opinion of Counsel, in form and
substance satisfactory to the Trustee and the Depositor, to the effect that such
A-14-5
<PAGE>
modification of, addition to or elimination of such provisions will not cause
any of REMIC I, REMIC II or REMIC III to (x) cease to qualify as a REMIC or (y)
be subject to an entity-level tax caused by the Transfer of any Class R-II
Certificate to a Person which is not a Permitted Transferee, or cause a Person
other than the prospective Transferee to be subject to a REMIC-related tax
caused by the Transfer of a Class R-II Certificate to a Person which is not a
Permitted Transferee.
A "Permitted Transferee" is any Transferee other than (i) the United
States, any State or political subdivision thereof, any possession of the United
States, or any agency or instrumentality of any of the foregoing (other than an
instrumentality which is a corporation if all of its activities are subject to
tax and, except for FHLMC, a majority of its board of directors is not selected
by such governmental unit), (ii) a foreign government, any international
organization, or any agency or instrumentality of any of the foregoing, (iii)
any organization (other than certain farmers' cooperatives described in Section
521 of the Code) which is exempt from the tax imposed by Chapter 1 of the Code
(including the tax imposed by Section 511 of the Code on unrelated business
taxable income), (iv) rural electric and telephone cooperatives described in
Section 1381(a)(2)(C) of the Code and (v) any other Person so designated by the
Trustee based upon an Opinion of Counsel that the holding of an Ownership
Interest in a Class R-II Certificate by such Person may cause the Trust Fund or
any Person having an Ownership Interest in any Class of Certificates (other than
such Person) to incur a liability for any federal tax imposed under the Code
that would not otherwise be imposed but for the Transfer of an Ownership
Interest in a Class R-II Certificate to such Person. The terms "United States",
"State" and "international organization" shall have the meanings set forth in
Section 7701 of the Code or successor provisions.
A "United States Person" is a citizen or resident of the United States, a
corporation, partnership or other entity created or organized in, or under the
laws of, the United States or any political subdivision thereof, or an estate or
trust whose income from sources without the United States is includable in gross
income for United States federal income tax purposes regardless of its
connection with the conduct of a trade or business within the United States.
No service charge will be imposed for any registration of transfer or
exchange of Class R-II Certificates, but the Trustee or the Certificate
Registrar may require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any transfer or
exchange of Class R-II Certificates.
Prior to due presentment of this Certificate for registration of transfer,
the Depositor, the Master Servicer, the Special Servicer, the Trustee, the
Certificate Registrar and any agents 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 Certificate Registrar or any such agent shall be affected by notice
to the contrary.
A-14-6
<PAGE>
The Trust Fund and the obligations created by the Agreement shall terminate
upon distribution (or provision for distribution) to the Certificateholders of
all amounts held by or on behalf of the Trustee and required to be distributed
to them pursuant to the Agreement following the earlier of (i) the final payment
or other liquidation (or any advance with respect thereto) of the last Mortgage
Loan or REO Property remaining in the Trust Fund, and (ii) the purchase by the
Depositor, the Master Servicer, the Special Servicer or the Holders of Class R-I
Certificates representing a majority Percentage Interest in such Class at a
price determined as provided in the Agreement of all Mortgage Loans and any REO
Properties remaining in the Trust Fund. The Agreement permits, but does not
require, the Depositor, the Master Servicer, or such Holders to purchase from
the Trust Fund all Mortgage Loans and any REO Properties remaining therein at
such time as the aggregate Stated Principal Balance of the Mortgage Pool is less
than 3% of the aggregate Cut-off Date Principal Balance of the Mortgage Pool
specified on the face hereof. The exercise of such right will effect early
retirement of the Certificates.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer, the Trustee and the Fiscal
Agent thereunder and the rights of the Certificateholders thereunder, at any
time by the Depositor, the Master Servicer, the Special Servicer, the Trustee
and the Fiscal Agent with the consent of the Holders of Certificates entitled to
at least 51% of the Voting Rights allocated to the affected Classes. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain circumstances,
including any amendment necessary to maintain the status of REMIC I, REMIC II or
REMIC III as a REMIC, without the consent of the Holders of any of the
Certificates.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it will
look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal laws of
the State of New York applicable to agreements made and to be performed in said
State, and the obligations, rights and remedies of the Holder hereof shall be
determined in accordance with such laws.
A-14-7
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
LaSalle National Bank,
as Trustee
By:_________________________________
Authorized Officer
A-14-8
<PAGE>
CERTIFICATE OF AUTHENTICATION
This is one of the Class R-II Certificates referred to in the within-mentioned
Agreement.
Dated:
LaSalle National Bank,
as Certificate Registrar
By:_________________________________
Authorized Officer
A-14-9
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(please print or typewrite name and address
including postal zip code of assignee)
the beneficial ownership interest in the Trust Fund evidenced by the within
Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage
Pass-Through Certificate of a like Percentage Interest and Class to the above
named assignee and delivery of such Commercial Mortgage Pass-Through Certificate
to the following address:
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
Dated:____________
-------------------------------------
Signature by or on behalf of Assignor
-------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise,
in immediately available funds, to________________________________ for the
account of________________________________________________________________.
Distributions made by check (such check to be made payable to
____________________) and all applicable statements and notices should be mailed
to__________________________________________.
This information is provided by ___________________________, the assignee
named above, or ____________________________________, as its agent.
A-14-10
<PAGE>
EXHIBIT A-15
FORM OF CLASS R-III CERTIFICATE
CLASS R-III COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 1997-C1
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool (the "Mortgage Pool") of multifamily and
commercial mortgage loans (the "Mortgage Loans"), such pool being formed and
sold by
MORGAN STANLEY CAPITAL I INC.
<TABLE>
<S> <C>
Date of Pooling and Servicing Percentage Interest evidenced by
Agreement: March 1, 1997 this Certificate in the related Class: ____%
Cut-off Date: March 1, 1997 Aggregate unpaid principal balance of the Mortgage
Pool as of the Cut-off Date, after deducting payments
Issue Date: March 26, 1997 of principal due on or before such date, whether or
not received: $640,657,923
First Distribution Date:
April 15, 1997
Master Servicer and Special Servicer: Trustee: LaSalle National Bank
GMAC Commercial Mortgage Corporation
Certificate No. R-III-__
</TABLE>
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN MORGAN
STANLEY CAPITAL I INC., GMAC COMMERCIAL MORTGAGE CORPORATION, LASALLE NATIONAL
BANK, ABN AMRO BANK N.V. ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1A, CLASS A-1B, CLASS A-1C, CLASS
A-2, CLASS IO-1, CLASS IO-2, CLASS B, CLASS C, CLASS D, CLASS E, CLASS F, CLASS
G, CLASS H AND CLASS J CERTIFICATES OF THE SAME SERIES, AS AND TO THE EXTENT
PROVIDED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES
LAWS OF ANY STATE. ANY RESALE,
A-15-1
<PAGE>
TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH REGISTRATION OR
QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT REQUIRE SUCH
REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS OF SECTION
3.3 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN TO AN EMPLOYEE BENEFIT
PLAN OR OTHER RETIREMENT ARRANGEMENT SUBJECT TO THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR THE INTERNAL REVENUE CODE OF 1986
(THE "CODE"), OR TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS
CERTIFICATE OR ANY INTEREST HEREIN ON BEHALF OF, AS NAMED FIDUCIARY OF, AS
TRUSTEE OF, OR WITH ASSETS OF ANY SUCH EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT, WILL BE REGISTERED EXCEPT IN COMPLIANCE WITH THE PROCEDURES
DESCRIBED HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "RESIDUAL
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
CONSEQUENTLY, TRANSFER OF THIS CERTIFICATE IS ALSO SUBJECT TO THE ADDITIONAL TAX
RELATED TRANSFER RESTRICTIONS DESCRIBED HEREIN. IF ANY PERSON BECOMES THE
REGISTERED HOLDER OF THIS CERTIFICATE IN VIOLATION OF SUCH TRANSFER
RESTRICTIONS, SUCH REGISTRATION SHALL BE DEEMED TO BE OF NO LEGAL FORCE OR
EFFECT WHATSOEVER AND SUCH PERSON SHALL NOT BE DEEMED TO BE A CERTIFICATEHOLDER
FOR ANY PURPOSE HEREUNDER OR UNDER THE POOLING AND SERVICING AGREEMENT REFERRED
TO HEREIN, INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OF DISTRIBUTIONS ON THIS
CERTIFICATE.
This certifies that _____________ is the registered owner of the Percentage
Interest evidenced by this Class R-III Certificate (as specified above) in that
certain beneficial ownership interest evidenced by all the Class R-III
Certificates in the Trust Fund created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), between 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, the capitalized
terms used herein have the respective meanings assigned in the Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on the
15th day of each month or, if such 15th day is not a Business Day, the Business
Day immediately following (each, a "Distribution Date"), commencing upon the
First Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business
A-15-2
<PAGE>
Day of the month immediately preceding the month of such distribution (the
"Record Date"), in an amount equal to the product of the Percentage Interest
evidenced by this Certificate and the amount required to be distributed to the
Holders of the Class R-III Certificates on the applicable Distribution Date
pursuant to the Agreement. All distributions made under the Agreement on any
Class R-III Certificate will be made by the Trustee by check mailed to the
address of the Person entitled thereto, as such name and address appear in the
Certificate Register. Notwithstanding the above, the final distribution on this
Certificate will be made after due notice by the Trustee of the pendency of such
distribution and only upon presentation and surrender of this Certificate at the
offices of the Certificate Registrar appointed as provided in the Agreement or
such other location as may be specified in such notice.
The Depositor's Mortgage Pass-Through Certificates, Series 1997-C1 (the
"Certificates") are limited in right of distribution to certain collections and
recoveries respecting the Mortgage Loans, all as more specifically set forth
herein and in the Agreement. As provided in the Agreement, withdrawals from the
Collection Account and Distribution Account may be made from time to time for
purposes other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
The Class R-III Certificates are issuable in fully registered form only
without coupons in minimum denominations representing Percentage Interests
specified in the Agreement. As provided in the Agreement and subject to certain
limitations therein set forth, Class R-III Certificates are exchangeable for new
Class R-III Certificates in authorized denominations evidencing the same
aggregate Percentage Interest, as requested by the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Class R-III Certificates in authorized
denominations evidencing the same aggregate Percentage Interest will be issued
to the designated transferee or transferees.
No transfer, sale, pledge or other disposition of any Class R-III
Certificate or interest therein shall be made unless that transfer, sale, pledge
or other disposition is exempt from the registration and/or qualification
requirements of the Securities Act and any applicable state securities laws, or
is otherwise made in accordance with the Securities Act and such state
securities laws. If a transfer of any Class R-III Certificate held as a
Definitive Certificate is to be made without registration under the Securities
Act (other than in connection with the initial issuance of the Certificates or a
transfer of such Class R-III Certificate by the Depositor or any of its
Affiliates), then the Certificate Registrar shall refuse to register such
transfer unless it receives (and upon receipt, may conclusively rely upon)
either: (i) a certificate from the
A-15-3
<PAGE>
Certificateholder desiring to effect such transfer substantially in the form
attached to the Agreement as Exhibit D-1 and a certificate from such
Certificateholder's prospective transferee substantially in the form attached to
the Agreement either as Exhibit D-2A or as Exhibit D-2B; or (ii) an Opinion of
Counsel satisfactory to the Trustee to the effect that such transfer may be made
without registration under the Securities Act (which Opinion of Counsel shall
not be an expense of the Trust Fund or of the Depositor, the Master Servicer,
the Special Servicer, the Trustee or the Certificate Registrar in their
respective capacities as such), together with the written certification(s) as to
the facts surrounding such transfer on which such Opinion of Counsel is based.
None of the Depositor, the Trustee or the Certificate Registrar is obligated to
register or qualify any Class R-III Certificates under the Securities Act or any
other securities law or to take any action not otherwise required under this
Agreement to permit the transfer of any Class R-III Certificate or interest
therein without registration or qualification. Any Certificateholder or
Certificate Owner desiring to effect a transfer of Class R-III Certificates or
interests therein shall, and does hereby agree to, indemnify, the Depositor, the
Underwriter, the Trustee, the Master Servicer, the Special Servicer and the
Certificate Registrar against any liability that may result if the transfer is
not exempt from such registration or qualification or is not made in accordance
with such federal and state laws.
No transfer of a Class R-III Certificate or any interest therein shall be
made (A) to any employee benefit plan or other retirement arrangement, including
individual retirement accounts and annuities, Keogh plans and collective
investment funds and separate accounts in which such plans, accounts or
arrangements are invested, including, without limitation, insurance company
general accounts, that is subject to ERISA or the Code (each, a "Plan"), or (B)
to any Person who is directly or indirectly purchasing such Certificate or
interest therein on behalf of, as named fiduciary of, as trustee of, or with
assets of a Plan, unless: (i) the purchase and holding of such Certificate or
interest therein is exempt from the prohibited transaction provisions of Section
406 of ERISA and Section 4975 of the Code under Section I and III of Prohibited
Transaction Class Exemption 95-60; or (ii) the prospective Transferee provides
the Certificate Registrar with a certification of facts and an Opinion of
Counsel which establish to the satisfaction of the Trustee that such transfer
will not result in a violation of Section 406 of ERISA or Section 4975 of the
Code or result in the imposition of an excise tax under Section 4975 of the Code
or subject the Depositor, the Trustee, the Fiscal Agent, the Master Servicer or
the Special Servicer to any obligation in addition to those undertaken in the
Agreement. Each Person who acquires any Class R-III Certificate or interest
therein (unless it shall have acquired such Certificate or interest therein from
the Depositor or an Affiliate thereof or unless it shall have delivered to the
Certificate Registrar the certification of facts and Opinion of Counsel referred
to in clause (ii) of the preceding sentence) shall be required to deliver to the
Certificate Registrar a certification to the effect that: (i) it is neither a
Plan nor any Person who is directly or indirectly purchasing such Class R-III
Certificate or interest therein on behalf of, as named fiduciary of, as trustee
of, or with assets of a Plan; or (ii) the purchase and holding of such
Certificate or interest therein by such person is exempt from the prohibited
transaction provisions of Section 406 of ERISA and Section 4975 of the Code
under Section I and II of Prohibited Transaction Class Exemption 95-60.
A-15-4
<PAGE>
Each Person who has or who acquires any Ownership Interest in this
Certificate shall be deemed by the acceptance or acquisition of such Ownership
Interest to have agreed to be bound by the provisions of Section 3.3(e) of the
Agreement and, if any purported Transferee shall become a Holder of this
Certificate in violation of the provisions of such Section 3.3(e), to have
irrevocably authorized the Trustee under clause (ii)(A) of such Section 3.3(e)
to deliver payments to a Person other than such Person and to have irrevocably
authorized the Trustee under clause (ii)(B) of such Section 3.3(e) to negotiate
the terms of any mandatory sale and to execute all instruments of Transfer and
to do all other things necessary in connection with any such sale. Each Person
holding or acquiring any Ownership Interest in this Certificate must be a
Permitted Transferee and a United States Person and shall promptly notify the
Trustee of any change or impending change in its status as a Permitted
Transferee or United States Person. In connection with any proposed Transfer of
any Ownership Interest in this Certificate, the Trustee shall require delivery
to it, and shall not register the Transfer of this Certificate until its receipt
of, an affidavit and agreement substantially in the form attached as Exhibit
E-1A to the Agreement (a "Transfer Affidavit and Agreement") from the proposed
Transferee, in form and substance satisfactory to the Trustee, representing and
warranting, among other things, that such Transferee is a Permitted Transferee
and a United States Person, that it is not acquiring its Ownership Interest in
this Certificate as a nominee, trustee or agent for any Person that is not a
Permitted Transferee or is not a United States Person, that for so long as it
retains its Ownership Interest in this Certificate, it will endeavor to remain a
Permitted Transferee and a United States Person, and that it has reviewed the
provisions of Section 3.3(e) of the Agreement and agrees to be bound by them.
Notwithstanding the delivery of a Transfer Affidavit and Agreement by a proposed
Transferee, if the Trustee has actual knowledge that the proposed Transferee is
not a Permitted Transferee or is not a United States Person, the Trustee shall
not register the Transfer of an Ownership Interest in this Certificate to such
proposed Transferee.
Each Person holding or acquiring any Ownership Interest in this Certificate
shall agree (x) to require a Transfer Affidavit and Agreement from any
prospective Transferee to whom such Person attempts to transfer its Ownership
Interest herein and (y) not to transfer its Ownership Interest unless it
provides to the Trustee a certificate substantially in the form attached as
Exhibit E-1B to the Agreement stating that, among other things, it has no actual
knowledge that such prospective Transferee is not a Permitted Transferee or is
not a United States Person. Each Person holding or acquiring an Ownership
Interest in this Certificate, by purchasing such Ownership Interest herein,
agrees to give the Trustee written notice that it is a "pass-through interest
holder" within the meaning of temporary Treasury regulation Section
1.67-3T(a)(2)(i)(A) immediately upon acquiring such Ownership Interest, if it
is, or is holding such Ownership Interest on behalf of, a "pass-through interest
holder".
The provisions of Section 3.3(e) of the Agreement may be modified, added to
or eliminated, provided that there shall have been delivered to the Trustee the
following: (a) written notification from each Rating Agency to the effect that
the modification of, addition to or elimination of such provisions will not
cause such Rating Agency to withdraw, qualify or downgrade its then-current
rating of any Class of Certificates; and (b) an Opinion of Counsel, in form and
substance satisfactory to the Trustee and the Depositor, to the effect that such
A-15-5
<PAGE>
modification of, addition to or elimination of such provisions will not cause
any of REMIC I, REMIC II or REMIC III to (x) cease to qualify as a REMIC or (y)
be subject to an entity-level tax caused by the Transfer of any Class R-III
Certificate to a Person which is not a Permitted Transferee, or cause a Person
other than the prospective Transferee to be subject to a REMIC-related tax
caused by the Transfer of a Class R-III Certificate to a Person which is not a
Permitted Transferee.
A "Permitted Transferee" is any Transferee other than (i) the United
States, any State or political subdivision thereof, any possession of the United
States, or any agency or instrumentality of any of the foregoing (other than an
instrumentality which is a corporation if all of its activities are subject to
tax and, except for FHLMC, a majority of its board of directors is not selected
by such governmental unit), (ii) a foreign government, any international
organization, or any agency or instrumentality of any of the foregoing, (iii)
any organization (other than certain farmers' cooperatives described in Section
521 of the Code) which is exempt from the tax imposed by Chapter 1 of the Code
(including the tax imposed by Section 511 of the Code on unrelated business
taxable income), (iv) rural electric and telephone cooperatives described in
Section 1381(a)(2)(C) of the Code and (v) any other Person so designated by the
Trustee based upon an Opinion of Counsel that the holding of an Ownership
Interest in a Class R-III Certificate by such Person may cause the Trust Fund or
any Person having an Ownership Interest in any Class of Certificates (other than
such Person) to incur a liability for any federal tax imposed under the Code
that would not otherwise be imposed but for the Transfer of an Ownership
Interest in a Class R-III Certificate to such Person. The terms "United States",
"State" and "international organization" shall have the meanings set forth in
Section 7701 of the Code or successor provisions.
A "United States Person" is a citizen or resident of the United States, a
corporation, partnership or other entity created or organized in, or under the
laws of, the United States or any political subdivision thereof, or an estate or
trust whose income from sources without the United States is includable in gross
income for United States federal income tax purposes regardless of its
connection with the conduct of a trade or business within the United States.
No service charge will be imposed for any registration of transfer or
exchange of Class R-III Certificates, but the Trustee or the Certificate
Registrar may require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any transfer or
exchange of Class R-III Certificates.
Prior to due presentment of this Certificate for registration of transfer,
the Depositor, the Master Servicer, the Special Servicer, the Trustee, the
Certificate Registrar and any agents 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 Certificate Registrar or any such agent shall be affected by notice
to the contrary.
A-15-6
<PAGE>
The Trust Fund and the obligations created by the Agreement shall terminate
upon distribution (or provision for distribution) to the Certificateholders of
all amounts held by or on behalf of the Trustee and required to be distributed
to them pursuant to the Agreement following the earlier of (i) the final payment
or other liquidation (or any advance with respect thereto) of the last Mortgage
Loan or REO Property remaining in the Trust Fund, and (ii) the purchase by the
Depositor, the Master Servicer, the Special Servicer or the Holders of Class R-I
Certificates representing a majority Percentage Interest in such Class at a
price determined as provided in the Agreement of all Mortgage Loans and any REO
Properties remaining in the Trust Fund. The Agreement permits, but does not
require, the Depositor, the Master Servicer, or such Holders to purchase from
the Trust Fund all Mortgage Loans and any REO Properties remaining therein at
such time as the aggregate Stated Principal Balance of the Mortgage Pool is less
than 3% of the aggregate Cut-off Date Principal Balance of the Mortgage Pool
specified on the face hereof. The exercise of such right will effect early
retirement of the Certificates.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer, the Trustee and the Fiscal
Agent thereunder and the rights of the Certificateholders thereunder, at any
time by the Depositor, the Master Servicer, the Special Servicer, the Trustee
and the Fiscal Agent with the consent of the Holders of Certificates entitled to
at least 51% of the Voting Rights allocated to the affected Classes. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain circumstances,
including any amendment necessary to maintain the status of REMIC I, REMIC II or
REMIC III as a REMIC, without the consent of the Holders of any of the
Certificates.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it will
look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal laws of
the State of New York applicable to agreements made and to be performed in said
State, and the obligations, rights and remedies of the Holder hereof shall be
determined in accordance with such laws.
A-15-7
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
LaSalle National Bank,
as Trustee
By:_________________________________
Authorized Officer
A-15-8
<PAGE>
CERTIFICATE OF AUTHENTICATION
This is one of the Class R-III Certificates referred to in the within-mentioned
Agreement.
Dated:
LaSalle National Bank,
as Certificate Registrar
By:_________________________________
Authorized Officer
A-15-9
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(please print or typewrite name and address
including postal zip code of assignee)
the beneficial ownership interest in the Trust Fund evidenced by the within
Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage
Pass-Through Certificate of a like Percentage Interest and Class to the above
named assignee and delivery of such Commercial Mortgage Pass-Through Certificate
to the following address:
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
Dated:____________
-------------------------------------
Signature by or on behalf of Assignor
-------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise,
in immediately available funds, to________________________________ for the
account of________________________________________________________________.
Distributions made by check (such check to be made payable to
____________________) and all applicable statements and notices should be mailed
to__________________________________________.
This information is provided by ___________________________, the assignee
named above, or ____________________________________, as its agent.
A-15-10
<PAGE>
EXHIBIT A-16
FORM OF CLASS IO-1 CERTIFICATE
CLASS IO-1 COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 1997-C1
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool (the "Mortgage Pool") of multifamily and
commercial mortgage loans (the "Mortgage Loans"), such pool being formed and
sold by
MORGAN STANLEY CAPITAL I INC.
<TABLE>
<S> <C>
Effective Pass-Through Rate: Effective Certificate Notional Amount of this
Variable Class IO-1 Certificate as of the Issue Date:
$----------------
Date of Pooling and Servicing Effective Class Notional Amount of all the
Agreement: March 1, 1997 the Class IO-1 Certificates as of the Issue
Date: $601,807,030
Cut-off Date: March 1, 1997 Aggregate unpaid principal balance of the
Issue Date: March 26, 1997 Mortgage Pool as of the Cut-off Date, after
deducting payments of principal due on or before
such date, whether or not received: $640,657,923
First Distribution Date:
April 15, 1997
Master Servicer and Special Servicer: Trustee: LaSalle National Bank
GMAC Commercial Mortgage Corporation CUSIP No.: 61745M AJ 2
Certificate No. IO-1-__
</TABLE>
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR, THE
TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF
A-16-1
<PAGE>
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 MORGAN
STANLEY CAPITAL I INC., GMAC COMMERCIAL MORTGAGE CORPORATION, LASALLE NATIONAL
BANK, ABN AMRO BANK N.V. OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE. THE
FOLLOWING INFORMATION IS PROVIDED SOLELY FOR THE PURPOSES OF APPLYING THE U.S.
FEDERAL INCOME TAX ORIGINAL ISSUE DISCOUNT ("OID") RULES TO THIS CERTIFICATE.
THE ISSUE DATE OF THIS CERTIFICATE IS MARCH 26, 1997. ASSUMING THAT THE MORTGAGE
LOANS PREPAY AT AN ASSUMED RATE OF PREPAYMENT USED SOLELY FOR THE PURPOSES OF
APPLYING THE OID RULES TO THE CERTIFICATES EQUAL TO A CPR (WITHIN THE MEANING OF
THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN) OF 5% DURING THE
RESPECTIVE PERIODS WHEN VOLUNTARY PREPAYMENTS OF PRINCIPAL THEREON ARE PERMITTED
WITHOUT THE IMPOSITION OF A PREPAYMENT PREMIUM BASED ON A YIELD MAINTENANCE
FORMULA (THE "PREPAYMENT ASSUMPTION"), THIS CERTIFICATE HAS BEEN ISSUED WITH NO
MORE THAN $$4191.12 OF OID PER $100,000 OF INITIAL EFFECTIVE CERTIFICATE
NOTIONAL AMOUNT, THE YIELD TO MATURITY IS 9.5843% PER ANNUM AND THE AMOUNT OF
OID ATTRIBUTABLE TO THE INITIAL ACCRUAL PERIOD IS NO MORE THAN $39.66 PER
$100,000 OF INITIAL EFFECTIVE CERTIFICATE NOTIONAL AMOUNT, COMPUTED UNDER THE
EXACT METHOD. NO REPRESENTATION IS MADE THAT THE MORTGAGE LOANS WILL PREPAY AT A
RATE BASED ON THE PREPAYMENT ASSUMPTION OR AT ANY OTHER RATE.
THIS CERTIFICATE DOES NOT HAVE A CERTIFICATE PRINCIPAL BALANCE AND DOES NOT
ENTITLE THE HOLDER HEREOF TO ANY DISTRIBUTIONS OF PRINCIPAL. THE HOLDER HEREOF
WILL BE ENTITLED TO DISTRIBUTIONS OF INTEREST ACCRUED AS PROVIDED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN ON THE CERTIFICATE NOTIONAL AMOUNT OF
THIS CERTIFICATE, WHICH AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE.
This certifies that _______________________________________ is the
registered owner of the Percentage Interest evidenced by this Class IO-1
Certificate (obtained by dividing the notional principal amount of this Class
IO-1 Certificate (its "Certificate Notional Amount")
A-16-2
<PAGE>
as of the Issue Date by the aggregate effective notional principal balance of
all the Class IO-1 Certificates (their "Class Notional Amount") as of the Issue
Date) in that certain beneficial ownership interest, evidenced by all the Class
IO-1 Certificates, in the Trust Fund created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), between 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, the capitalized
terms used herein have the respective meanings assigned in the Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on the
15th day of each month or, if such 15th day is not a Business Day, the Business
Day immediately following (each, a "Distribution Date"), commencing on the First
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"), in an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed to the Holders of the
Class IO-1 Certificates on the applicable Distribution Date pursuant to the
Agreement. All distributions made under the Agreement on any Class IO-1
Certificate will be made by the Trustee by wire transfer in immediately
available funds to the account of the Person entitled thereto at a bank or other
entity having appropriate facilities therefor, if such Certificateholder shall
have provided the Trustee with wiring instructions on or prior to the Record
Date for such distribution (which wiring instructions may be in the form of a
standing order applicable to all subsequent distributions as well), or otherwise
by check mailed to the address of such Certificateholder appearing in the
Certificate Register. Notwithstanding the above, the final distribution on this
Certificate will be made after due notice by the Trustee of the pendency of such
distribution and only upon presentation and surrender of this Certificate at the
offices of the Certificate Registrar appointed as provided in the Agreement or
such other location as may be specified in such notice.
The Depositor's Mortgage Pass-Through Certificates, Series 1997-C1 (the
"Certificates") are limited in right of distribution to certain collections and
recoveries respecting the Mortgage Loans, all as more specifically set forth
herein and in the Agreement. As provided in the Agreement, withdrawals from the
Collection Account and the Distribution Account may be made from time to time
for purposes other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
The Class IO-1 Certificates are issuable in fully registered form only,
without coupons, in minimum denominations specified in the Agreement. As
provided in the Agreement and subject to certain limitations therein set forth,
Class IO-1 Certificates are exchangeable for new Class IO-1 Certificates in
authorized denominations evidencing the same aggregate Percentage Interest, as
requested by the Holder surrendering the same.
A-16-3
<PAGE>
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Class IO-1 Certificates in authorized
denominations evidencing the same aggregate Percentage Interest will be issued
to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer or
exchange of Class IO-1 Certificates, but the Trustee or the Certificate
Registrar may require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any transfer or
exchange of Class IO-1 Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
Prior to due presentment of this Certificate for registration of transfer,
the Depositor, the Master Servicer, the Special Servicer, the Trustee, the
Fiscal Agent, the Certificate Registrar and any agents 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 or any such
agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall terminate
upon distribution (or provision for distribution) to the Certificateholders of
all amounts held by or on behalf of the Trustee and required to be distributed
to them pursuant to the Agreement following the earlier of (i) the final payment
or other liquidation (or any advance with respect thereto) of the last Mortgage
Loan or REO Property remaining in the Trust Fund, and (ii) the purchase by the
Depositor, the Master Servicer, the Special Servicer or the Holders of Class R-I
Certificates representing a majority Percentage Interest in such Class, at a
price determined as provided in the Agreement, of all Mortgage Loans and any REO
Properties remaining in the Trust Fund. The Agreement permits, but does not
require, the Depositor, the Master Servicer, or such Holders to purchase from
the Trust Fund all Mortgage Loans and any REO Properties remaining therein at
such time as the aggregate Stated Principal Balance of the Mortgage Pool is less
than 3% of the aggregate Cut-off Date Principal Balance of the Mortgage Pool
specified on the face hereof. The exercise of such right will effect early
retirement of the Certificates.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer, the Trustee and the Fiscal
Agent thereunder and the rights of the Certificateholders thereunder, at any
time by the Depositor, the Master Servicer, the Special Servicer, the Trustee
and the Fiscal Agent with the consent of the Holders of Certificates entitled
A-16-4
<PAGE>
to at least 51% of the Voting Rights allocated to the affected Classes. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain circumstances,
including any amendment necessary to maintain the status of REMIC I, REMIC II or
REMIC III as a REMIC, without the consent of the Holders of any of the
Certificates.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it will
look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal laws of
the State of New York applicable to agreements made and to be performed in said
State, and the obligations, rights and remedies of the Holder hereof shall be
determined in accordance with such laws.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
LaSalle National Bank,
as Trustee
By:_________________________________
Authorized Officer
A-16-5
<PAGE>
CERTIFICATE OF AUTHENTICATION
This is one of the Class IO-1 Certificates referred to in the
within-mentioned Agreement.
Dated:
LaSalle National Bank,
as Certificate Registrar
By:_________________________________
Authorized Officer
A-16-6
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(please print or typewrite name and address
including postal zip code of assignee)
the beneficial ownership interest in the Trust Fund evidenced by the within
Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage
Pass-Through Certificate of a like Percentage Interest and Class to the above
named assignee and delivery of such Commercial Mortgage Pass-Through Certificate
to the following address:
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
Dated:____________
-------------------------------------
Signature by or on behalf of Assignor
-------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise,
in immediately available funds, to________________________________ for the
account of________________________________________________________________.
Distributions made by check (such check to be made payable to
____________________) and all applicable statements and notices should be mailed
to__________________________________________.
This information is provided by ___________________________, the assignee
named above, or ____________________________________, as its agent.
A-16-7
<PAGE>
EXHIBIT A-17
FORM OF CLASS IO-2 CERTIFICATE
CLASS IO-2 COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 1997-C1
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool (the "Mortgage Pool") of multifamily and
commercial mortgage loans (the "Mortgage Loans"), such pool being formed and
sold by
MORGAN STANLEY CAPITAL I INC.
<TABLE>
<S> <C>
Pass-Through Rate: Variable Certificate Notional Amount of this Class IO-2
Certificate as of the Issue Date:
$----------------
Date of Pooling and Servicing Class Notional Amount of all the
Agreement: March 1, 1997 the Class IO-2 Certificates as of the Issue
Date: $38,248,484
Cut-off Date: March 1, 1997 Aggregate unpaid principal balance of the
Issue Date: March 26, 1997 Mortgage Pool as of the Cut-off Date, after
deducting payments of principal due on or before
such date, whether or not received: $640,657,923
First Distribution Date:
April 15, 1997
Master Servicer and Special Servicer: Trustee: LaSalle National Bank
GMAC Commercial Mortgage Corporation CUSIP No.: 61745M AK 9
Certificate No. IO-2-__
</TABLE>
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR, THE
TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF
A-17-1
<PAGE>
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 MORGAN
STANLEY CAPITAL I INC., GMAC COMMERCIAL MORTGAGE CORPORATION, LASALLE NATIONAL
BANK, ABN AMRO BANK N.V. OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE. THE
FOLLOWING INFORMATION IS PROVIDED SOLELY FOR THE PURPOSES OF APPLYING THE U.S.
FEDERAL INCOME TAX ORIGINAL ISSUE DISCOUNT ("OID") RULES TO THIS CERTIFICATE.
THE ISSUE DATE OF THIS CERTIFICATE IS MARCH 26, 1997. ASSUMING THAT THE MORTGAGE
LOANS PREPAY AT AN ASSUMED RATE OF PREPAYMENT USED SOLELY FOR THE PURPOSES OF
APPLYING THE OID RULES TO THE CERTIFICATES EQUAL TO A CPR (WITHIN THE MEANING OF
THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN) OF 5% DURING THE
RESPECTIVE PERIODS WHEN VOLUNTARY PREPAYMENTS OF PRINCIPAL THEREON ARE PERMITTED
WITHOUT THE IMPOSITION OF A PREPAYMENT PREMIUM BASED ON A YIELD MAINTENANCE
FORMULA (THE "PREPAYMENT ASSUMPTION"), THIS CERTIFICATE HAS BEEN ISSUED WITH NO
MORE THAN $8735.78 OF OID PER $100,000 OF INITIAL CERTIFICATE NOTIONAL AMOUNT,
THE YIELD TO MATURITY IS 43.5743% PER ANNUM AND THE AMOUNT OF OID ATTRIBUTABLE
TO THE INITIAL ACCRUAL PERIOD IS NO MORE THAN $109.06 PER $100,000 OF INITIAL
CERTIFICATE NOTIONAL AMOUNT, COMPUTED UNDER THE EXACT METHOD. NO REPRESENTATION
IS MADE THAT THE MORTGAGE LOANS WILL PREPAY AT A RATE BASED ON THE PREPAYMENT
ASSUMPTION OR AT ANY OTHER RATE.
THIS CERTIFICATE DOES NOT HAVE A CERTIFICATE PRINCIPAL BALANCE AND DOES NOT
ENTITLE THE HOLDER HEREOF TO ANY DISTRIBUTIONS OF PRINCIPAL. THE HOLDER HEREOF
WILL BE ENTITLED TO DISTRIBUTIONS OF INTEREST ACCRUED AS PROVIDED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN ON THE CERTIFICATE NOTIONAL AMOUNT OF
THIS CERTIFICATE, WHICH AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE.
This certifies that _______________________________________ is the
registered owner of the Percentage Interest evidenced by this Class IO-2
Certificate (obtained by dividing the notional principal amount of this Class
IO-2 Certificate (its "Certificate Notional Amount")
A-17-2
<PAGE>
as of the Issue Date by the aggregate effective notional principal balance of
all the Class IO-2 Certificates (their "Class Notional Amount") as of the Issue
Date) in that certain beneficial ownership interest, evidenced by all the Class
IO-2 Certificates, in the Trust Fund created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), between 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, the capitalized
terms used herein have the respective meanings assigned in the Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on the
15th day of each month or, if such 15th day is not a Business Day, the Business
Day immediately following (each, a "Distribution Date"), commencing on the First
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"), in an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed to the Holders of the
Class IO-2 Certificates on the applicable Distribution Date pursuant to the
Agreement. All distributions made under the Agreement on any Class IO-2
Certificate will be made by the Trustee by wire transfer in immediately
available funds to the account of the Person entitled thereto at a bank or other
entity having appropriate facilities therefor, if such Certificateholder shall
have provided the Trustee with wiring instructions on or prior to the Record
Date for such distribution (which wiring instructions may be in the form of a
standing order applicable to all subsequent distributions as well), or otherwise
by check mailed to the address of such Certificateholder appearing in the
Certificate Register. Notwithstanding the above, the final distribution on this
Certificate will be made after due notice by the Trustee of the pendency of such
distribution and only upon presentation and surrender of this Certificate at the
offices of the Certificate Registrar appointed as provided in the Agreement or
such other location as may be specified in such notice.
The Depositor's Mortgage Pass-Through Certificates, Series 1997-C1 (the
"Certificates") are limited in right of distribution to certain collections and
recoveries respecting the Mortgage Loans, all as more specifically set forth
herein and in the Agreement. As provided in the Agreement, withdrawals from the
Collection Account and the Distribution Account may be made from time to time
for purposes other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
The Class IO-2 Certificates are issuable in fully registered form only,
without coupons, in minimum denominations specified in the Agreement. As
provided in the Agreement and subject to certain limitations therein set forth,
Class IO-2 Certificates are exchangeable for new Class IO-2 Certificates in
authorized denominations evidencing the same aggregate Percentage Interest, as
requested by the Holder surrendering the same.
A-17-3
<PAGE>
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Class IO-2 Certificates in authorized
denominations evidencing the same aggregate Percentage Interest will be issued
to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer or
exchange of Class IO-2 Certificates, but the Trustee or the Certificate
Registrar may require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any transfer or
exchange of Class IO-2 Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
Prior to due presentment of this Certificate for registration of transfer,
the Depositor, the Master Servicer, the Special Servicer, the Trustee, the
Fiscal Agent, the Certificate Registrar and any agents 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 or any such
agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall terminate
upon distribution (or provision for distribution) to the Certificateholders of
all amounts held by or on behalf of the Trustee and required to be distributed
to them pursuant to the Agreement following the earlier of (i) the final payment
or other liquidation (or any advance with respect thereto) of the last Mortgage
Loan or REO Property remaining in the Trust Fund, and (ii) the purchase by the
Depositor, the Master Servicer, the Special Servicer or the Holders of Class R-I
Certificates representing a majority Percentage Interest in such Class, at a
price determined as provided in the Agreement, of all Mortgage Loans and any REO
Properties remaining in the Trust Fund. The Agreement permits, but does not
require, the Depositor, the Master Servicer, or such Holders to purchase from
the Trust Fund all Mortgage Loans and any REO Properties remaining therein at
such time as the aggregate Stated Principal Balance of the Mortgage Pool is less
than 3% of the aggregate Cut-off Date Principal Balance of the Mortgage Pool
specified on the face hereof. The exercise of such right will effect early
retirement of the Certificates.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer, the Trustee and the Fiscal
Agent thereunder and the rights of the Certificateholders thereunder, at any
time by the Depositor, the Master Servicer, the Special Servicer, the Trustee
and the Fiscal Agent with the consent of the Holders of Certificates entitled
A-17-4
<PAGE>
to at least 51% of the Voting Rights allocated to the affected Classes. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain circumstances,
including any amendment necessary to maintain the status of REMIC I, REMIC II or
REMIC III as a REMIC, without the consent of the Holders of any of the
Certificates.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it will
look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal laws of
the State of New York applicable to agreements made and to be performed in said
State, and the obligations, rights and remedies of the Holder hereof shall be
determined in accordance with such laws.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
LaSalle National Bank,
as Trustee
By:_________________________________
Authorized Officer
A-17-5
<PAGE>
CERTIFICATE OF AUTHENTICATION
This is one of the Class IO-2 Certificates referred to in the
within-mentioned Agreement.
Dated:
LaSalle National Bank,
as Certificate Registrar
By:_________________________________
Authorized Officer
A-17-6
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(please print or typewrite name and address
including postal zip code of assignee)
the beneficial ownership interest in the Trust Fund evidenced by the within
Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage
Pass-Through Certificate of a like Percentage Interest and Class to the above
named assignee and delivery of such Commercial Mortgage Pass-Through Certificate
to the following address:
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
Dated:____________
-------------------------------------
Signature by or on behalf of Assignor
-------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise,
in immediately available funds, to________________________________ for the
account of________________________________________________________________.
Distributions made by check (such check to be made payable to
____________________) and all applicable statements and notices should be mailed
to__________________________________________.
This information is provided by ___________________________, the assignee
named above, or ____________________________________, as its agent.
A-17-7
<PAGE>
EXHIBIT B-1
FORM OF INITIAL CERTIFICATION OF TRUSTEE
__________, 1997
Morgan Stanley Capital I Inc.
1585 Broadway, 37th Floor
New York, New York 10036
Re: Pooling and Servicing Agreement ("Pooling and Servicing Agreement")
relating to Morgan Stanley Capital I Inc., Commercial Mortgage
Pass-Through Certificates, Series 1997-C1
----------------------------------------------------------------------
Ladies and Gentlemen:
In accordance with the provisions of Section 2.2 of the Pooling and
Servicing Agreement, the undersigned hereby certifies that, with respect to each
Mortgage Loan listed in the Mortgage Loan Schedule and subject to the exceptions
noted in the schedule of exceptions attached hereto, that: (a) all documents
specified in clause (i) of the definition of "Mortgage File" are in its
possession, (b) such documents have been reviewed by it and have not been
materially mutilated, damaged, defaced, torn or otherwise physically altered,
and such documents relate to such Mortgage Loan, (c) based on its examination
and only as to the foregoing documents, the loan number and the name of the
borrower set forth in the Mortgage Loan Schedule respecting such Mortgage Loan
accurately reflects the information contained in such documents, and (d) each
Mortgage Note has been endorsed as provided in clause (i) of the definition of
"Mortgage File". The Trustee makes no representations as to: (i) the validity,
legality, sufficiency, enforceability or genuineness of any such documents
contained in each Mortgage File or any of the Mortgage Loans identified in the
Mortgage Loan Schedule, or (ii) the collectibility, insurability, effectiveness
or suitability of any such Mortgage Loan.
The Trustee acknowledges receipt of notice that the Depositor has granted
to the Trustee for the benefit of the Certificateholders a security interest in
all of the Depositor's right, title and interest in and to the Mortgage Loans.
Capitalized words and phrases used herein and not otherwise defined herein
shall have the respective meanings assigned to them in the Pooling and Servicing
Agreement. This Certificate is subject in all respects to the terms of said
Pooling and Servicing Agreement.
LASALLE NATIONAL BANK, as Trustee
By:______________________________________
Name:
Title:
B-1-1
<PAGE>
EXHIBIT B-2
FORM OF FINAL CERTIFICATION OF TRUSTEE
__________, 1997
Morgan Stanley Capital I Inc.
1585 Broadway, 37th Floor
New York, New York 10036
Re: Pooling and Servicing Agreement ("Pooling and Servicing Agreement")
relating to Morgan Stanley Capital I Inc., Commercial Mortgage
Pass-Through Certificates, Series 1997-C1
----------------------------------------------------------------------
Ladies and Gentlemen:
In accordance with the provisions of Section 2.2 of the Pooling and
Servicing Agreement, the undersigned hereby certifies that, with respect to each
Mortgage Loan listed in the Mortgage Loan Schedule and subject to the exceptions
noted in the Schedule of exceptions attached hereto, that: (a) all documents
required to be included in the Mortgage File pursuant to clauses (i), (ii),
(iii), (ix), (xii) (to the extent it relates to the foregoing) and (xiii) (if a
leasehold interest of the borrower in the related Mortgaged Property is evident
from the related Mortgage or title policy) of the definition of "Mortgage File"
are in its possession, (b) such documents have been reviewed by it and have not
been materially mutilated, damaged, defaced, torn or otherwise physically
altered, and such documents relate to such Mortgage Loan, (c) based on its
examination and only as to the foregoing documents, the loan number, the street
address of the Mortgaged Property and the name of the borrower set forth in the
Mortgage Loan Schedule respecting such Mortgage Loan accurately reflects the
information contained in the documents in the Mortgage File, and (d) each
Mortgage Note has been endorsed and each Assignment of Mortgage has been
delivered as provided in the definition of "Mortgage File". The Trustee makes no
representations as to: (i) the validity, legality, sufficiency, enforceability
or genuineness of any of the documents contained in each Mortgage File or any of
the Trustee Mortgage Loans identified in the Mortgage Loan Schedule, or (ii) the
collectibility, insurability, effectiveness or suitability of any such Mortgage
Loan.
The Trustee acknowledges receipt of notice that the Depositor has granted
to the Trustee for the benefit of the Certificateholders a security interest in
all of the Depositor's right, title and interest in and to the Mortgage Loans.
B-2-1
<PAGE>
Capitalized words and phrases used herein shall have the respective
meanings assigned to them in the Pooling and Servicing Agreement. This
Certificate is qualified in all respects by the terms of said Pooling and
Servicing Agreement including but not limited to Section 2.2.
LASALLE NATIONAL BANK, as Trustee
By:______________________________________
Name:
Title:
B-2-2
<PAGE>
EXHIBIT C
FORM OF REQUEST FOR RELEASE
To: LaSalle National Bank, Trustee
135 South LaSalle Street
Chicago, Illinois 60674
Attn: Asset-Backed Securities Trust Services Group
Re: Morgan Stanley Capital I Inc., Commercial
Mortgage Pass-Through Certificates, Series 1997-C1
--------------------------------------------------
Date:__________
In connection with the administration of the Mortgage Loans held by you as
Trustee under the Pooling and Servicing Agreement dated as of March 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"), the undersigned hereby requests a release of the Trustee Mortgage
File held by you as Trustee with respect to the following described Mortgage
Loan for the reason indicated below.
Mortgagor's Name:
Address:
Loan No.:
Reason for requesting file:
_____ 1. Mortgage Loan paid in full.
(The [Master] [Special] Servicer hereby certifies that all amounts
received in connection with the Mortgage Loan have been or will be,
following the [Master] [Special] Servicer's release of the Trustee
Mortgage File, credited to the Collection Account or the Distribution
Account pursuant to the Pooling and Servicing Agreement.)
_____ 2. Mortgage Loan repurchased.
(The [Master] [Special] Servicer hereby certifies that the Purchase
Price has been credited to the Distribution Account pursuant to the
Pooling and Servicing Agreement.)
C-1
<PAGE>
_____ 3. Mortgage Loan substituted.
(The [Master] [Special] Servicer hereby certifies that a Qualifying
Substitute Mortgage Loan has been assigned and delivered to you along
with the related Trustee Mortgage File pursuant to the Pooling and
Servicing Agreement.)
_____ 4. The Mortgage Loan is being foreclosed.
_____ 5. Other. (Describe)
The undersigned acknowledges that the above Trustee Mortgage File will
be held by the undersigned in accordance with the provisions of the Pooling and
Servicing Agreement and will be returned to you, except if the Mortgage Loan has
been paid in full, repurchased or substituted for by a Qualifying Substitute
Mortgage Loan (in which case the Trustee Mortgage File will be retained by us
permanently), when no longer required by us for such purpose).
Capitalized terms used herein shall have the meanings ascribed to them
in the Pooling and Servicing Agreement.
[Name of [Master] [Special] Servicer]
By:__________________________________
Name:
Title:
C-2
<PAGE>
EXHIBIT D-1
FORM OF TRANSFEROR CERTIFICATE FOR
TRANSFERS OF DEFINITIVE PRIVATELY OFFERED CERTIFICATES
[Date]
[CERTIFICATE REGISTRAR]
Re: Morgan Stanley Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 1997-C1, Class (the "Certificates")
Dear Sirs:
This letter is delivered to you in connection with the transfer by
_________________ (the "Transferor") to _________________ (the "Transferee") of
[Class ___ Certificates having an initial principal balance as of March ___,
1997 (the "Closing Date") of $__________][evidencing a ____% Percentage Interest
in the related Class] (the "Transferred Certificates"). The Transferred
Certificates were issued pursuant to the Pooling and Servicing Agreement (the
"Pooling and Servicing Agreement"), dated as of March 1, 1997, among Morgan
Stanley Capital I Inc. as depositor (the "Depositor"), GMAC Commercial Mortgage
Corporation as master servicer and as special servicer, LaSalle National Bank as
trustee and ABN AMRO Bank N.V. as fiscal agent. All terms used herein and not
otherwise defined shall have the meanings set forth in the Pooling and Servicing
Agreement. The Transferor hereby certifies, represents and warrants to you, as
Certificate Registrar, that:
1. The Transferor is the lawful owner of the Transferred Certificates
with the full right to transfer such Certificates free from any and all
claims and encumbrances whatsoever.
2. Neither the Transferor nor anyone acting on its behalf has (a)
offered, transferred, pledged, sold or otherwise disposed of any
Transferred Certificate, any interest in any Certificate or any other
similar security to any person in any manner, (b) solicited any offer to
buy or accept a transfer, pledge or other disposition of any Transferred
Certificate, any interest in any Transferred Certificate or any other
similar security from any person in any manner, (c) otherwise approached or
negotiated with respect to any Transferred Certificate, any interest in any
Transferred Certificate or any other similar security with any person in
any manner, (d) made any general solicitation by means of general
advertising or in any other manner, or (e) taken any other action, which
(in the case of any of the acts described in clauses (a) through (e)
hereof) would constitutea distribution of any Transferred Certificate under
the Securities Act of 1933, as amended
D-1-3
<PAGE>
(the "Securities Act"), or would render the disposition of any Transferred
Certificate a violation of Section 5 of the Securities Act or any state
securities laws, or would require registration or qualification of any
Transferred Certificate pursuant to the Securities Act or any state
securities laws.
Very truly yours,
_________________________________________
(Transferor)
By:______________________________________
Name:____________________________________
Title:___________________________________
D-1-4
<PAGE>
EXHIBIT D-2A
FORM I OF TRANSFEREE CERTIFICATE
FOR TRANSFERS OF DEFINITIVE
PRIVATELY OFFERED CERTIFICATES
[Date]
[CERTIFICATE REGISTRAR]
Re: Morgan Stanley Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 1997-C1 (the "Certificates")
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
_________________ (the "Transferor") to _________________ (the "Transferee") of
Class ______ Certificates [having an initial Certificate Principal Balance as of
March __, 1997 (the "Closing Date") of [$__________] [evidencing a ____%
Percentage Interest in the related Class] (the "Transferred Certificates"). The
Certificates, including the Transferred Certificates, were issued pursuant to
the Pooling and Servicing Agreement, dated as of March 1, 1997 (the "Pooling and
Servicing Agreement"), among Morgan Stanley Capital I Inc. as depositor (the
"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 but not otherwise defined herein shall
have the respective meanings set forth in the Pooling and Servicing Agreement.
The Transferee hereby certifies, represents and warrants to you, as Certificate
Registrar, that:
1. The Transferee is a "qualified institutional buyer" (a "Qualified
Institutional Buyer") as that term is defined in Rule 144A ("Rule 144A")
under the Securities Act of 1933, as amended (the "Securities Act") and has
completed one of the forms of certification to that effect attached hereto
as Annex 1 and Annex 2. The Transferee is aware that the sale to it of the
Transferred Certificates is being made in reliance on Rule 144A. The
Transferee is acquiring the Transferred Certificates for its own account or
for the account of a Qualified Institutional Buyer, and understands that
such Transferred Certificates may be resold, pledged or transferred only
(i) to a person reasonably believed to be a Qualified Institutional Buyer
that purchases for its own account or for the account of a Qualified
Institutional Buyer to whom notice is given that the resale, pledge or
transfer is being made in reliance on Rule 144A, or (ii) pursuant to
another exemption from registration under the Securities Act.
D-2A-1
<PAGE>
2. The Transferee has been furnished with all information regarding
(a) the Transferred Certificates and distributions thereon, (b) the nature,
performance and servicing of the Mortgage Loans, (c) the Pooling and
Servicing Agreement, and (d) any credit enhancement mechanism associated
with the Transferred Certificates, that it has requested.
Very truly yours,
_________________________________________
(Transferor)
By:______________________________________
Name:____________________________________
Title:___________________________________
D-2A-2
<PAGE>
EXHIBIT E-1A
FORM OF TRANSFER AFFIDAVIT AND AGREEMENT
FOR TRANSFERS OF REMIC RESIDUAL CERTIFICATES
STATE OF )
) ss:
COUNTY OF )
____________________, being first duly sworn, deposes and says that:
1. He/She is the ____________________ of ____________________ (the
prospective transferee (the "Transferee") of Morgan Stanley Capital I Inc.,
Mortgage Pass-Through Certificates, Series 1997-C1, Class [R-I] [R-II] [R-III],
evidencing a ____% Percentage Interest in such Class (the "Residual
Certificates")), a ________________ duly organized and validly existing under
the laws of ____________________, on behalf of which he/she makes this
affidavit. All capitalized terms used but not otherwise defined herein shall
have the respective meanings set forth in the Pooling and Servicing Agreement
pursuant to which the Residual Certificates were issued (the "Pooling and
Servicing Agreement").
2. The Transferee (i) is, and as of the date of transfer will be, a
"Permitted Transferee" and will endeavor to remain a "Permitted Transferee" for
so long as it holds the Residual Certificates, and (ii) is acquiring the
Residual Certificates for its own account or for the account of another
prospective transferee from which it has received an affidavit in substantially
the same form as this affidavit. A "Permitted Transferee" is any Person other
than a "disqualified organization" or a possession of the United States. (For
this purpose, a "disqualified organization" means the United States, any state
or political subdivision thereof, any agency or instrumentality of any of the
foregoing (other than an instrumentality, all of the activities of which are
subject to tax and, except for the Federal Home Loan Mortgage Corporation, a
majority of whose board of directors is not selected by any such governmental
entity) or any foreign government, international organization or any agency or
instrumentality of such foreign government or organization, any rural electric
or telephone cooperative, or any organization (other than certain farmers'
cooperatives) that is generally exempt from federal income tax unless such
organization is subject to the tax on unrelated business taxable income.
3. The Transferee is aware (i) of the tax that would be imposed on
transfers of the Residual Certificates to "disqualified organizations" under the
Code that applies to all transfers of the Residual Certificates; (ii) that such
tax would be on the transferor or, if such transfer is through an agent (which
Person includes a broker, nominee or middleman) for a non-Permitted Transferee,
on the agent; (iii) that the Person otherwise liable for the tax shall be
relieved of liability for the tax if the transferee furnishes to such Person an
affidavit that the transferee is a Permitted Transferee and, at the time of
transfer, such Person does not have actual knowledge that the affidavit is
false; and (iv) that the Residual Certificates may be a "noneconomic residual
interest" within the meaning of Treasury regulation Section 1.860E-1(c) and that
the transferor
E-1A-1
<PAGE>
of a "noneconomic residual interest" will remain liable for any taxes due with
respect to the income on such residual interest, unless no significant purpose
of the transfer is to enable the transferor to impede the assessment or
collection of tax.
4. The Transferee is aware of the tax imposed on a "pass-through entity"
holding the Residual Certificates if at any time during the taxable year of the
pass-through entity a non-Permitted Transferee is the record holder of an
interest in such entity. (For this purpose, a "pass-through entity" includes a
regulated investment company, a real estate investment trust or common trust
fund, a partnership, trust or estate, and certain cooperatives.)
5. The Transferee is aware that the Certificate Registrar will not register
any transfer of the Residual Certificates by the Transferee unless the
Transferee's transferee, or such transferee's agent, delivers to the Certificate
Registrar, among other things, an affidavit and agreement in substantially the
same form as this affidavit and agreement. The Transferee expressly agrees that
it will not consummate any such transfer if it knows or believes that any
representation contained in such affidavit and agreement is false.
6. The Transferee consents to any additional restrictions or arrangements
that shall be deemed necessary upon advice of counsel to constitute a reasonable
arrangement to ensure that the Residual Certificate will only be owned, directly
or indirectly, by a Permitted Transferee.
7. The Transferee's taxpayer identification number is _________________.
8. The Transferee has reviewed the provisions of Section 3.3(e) of the
Pooling and Servicing Agreement, a description of which provisions is set forth
in the Residual Certificates (in particular, clause (ii)(A) of Section 3.3(e)
which authorizes the Trustee to deliver payments on the Residual Certificate to
a Person other than the Transferee and clause (ii)(B) of Section 3.3(e) which
authorizes the Trustee to negotiate a mandatory sale of the Residual
Certificates, in either case, in the event that the Transferee holds such
Residual Certificates in violation of Section 3.3(e)); and the Transferee
expressly agrees to be bound by and to comply with such provisions.
9. No purpose of the Transferee relating to its purchase or any sale of the
Residual Certificates is or will be to impede the assessment or collection of
any tax.
10. The Transferee hereby represents to and for the benefit of the
transferor that the Transferee intends to pay any taxes associated with holding
the Residual Certificates as they become due, fully understanding that it may
incur tax liabilities in excess of any cash flows generated by the Residual
Certificates.
11. The Transferee will, in connection with any transfer that it makes of
the Residual Certificates, deliver to the Certificate Registrar a representation
letter substantially in the form of Exhibit E-2 to the Pooling and Servicing
Agreement in which it will represent and warrant, among other things, that it is
not transferring the Residual Certificates to impede the assessment or
collection of any tax and that it has at the time of such transfer conducted a
E-1A-2
<PAGE>
reasonable investigation of the financial condition of the proposed transferee
as contemplated by Treasury regulation Section 1.860E-1(c)(4)(i) and has
satisfied the requirements of such provision.
12. The Transferee is a citizen or resident of the United States, a
corporation, a partnership or other entity created or organized in, or under the
laws of, the United States or any political subdivision thereof, or an estate or
trust whose income from sources without the United States is includible in gross
income for United States federal income tax purposes regardless of its
connection with the conduct of a trade or business within the United States.
E-1A-3
<PAGE>
IN WITNESS WHEREOF, the Transferee has caused this instrument to be
executed on its behalf, pursuant to the authority of its Board of Directors, by
its ____________________ and its corporate seal to be hereunto attached,
attested by its [Assistant] Secretary, this day of _________________, ____.
[NAME OF TRANSFEREE]
By:________________________________
[Name of Officer]
[Title of Officer]
[Corporate Seal]
ATTEST:
____________________________
[Assistant] Secretary
Personally appeared before me the above-named ____________________, known
or proved to me to be the same person who executed the foregoing instrument and
to be the ____________________ of the Transferee, and acknowledged to me that
he/she executed the same as his/her free act and deed and the free act and deed
of the Transferee.
Subscribed and sworn before me this ___ day of _____________________,
_____.
_____________________________________
NOTARY PUBLIC
COUNTY OF____________________________
STATE OF_____________________________
My Commission expires the _________ day of
___________, 19__.
E-1A-4
<PAGE>
EXHIBIT E-1B
FORM OF TRANSFEROR CERTIFICATE FOR TRANSFERS OF
REMIC RESIDUAL CERTIFICATES
_______________, 19__
LaSalle National Bank, as Trustee
Corporate Trust Office
135 S. LaSalle Street, Suite 1740
Chicago, Illinois 60674-4107
Re: Morgan Stanley Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 1997-C1 (the "Certificates")
Dear Sirs:
This letter is delivered to you in connection with the transfer by
_________________ (the "Transferor") to _________________ (the "Transferee") of
[Class R-I] [Class R-II] [Class R-III] Certificates evidencing a ____%
Percentage Interest in such Class (the "Residual Certificates"). The
Certificates, including the Residual Certificates, were issued pursuant to the
Pooling and Servicing Agreement, dated as of March 1, 1997 (the "Pooling and
Servicing Agreement"), among Morgan Stanley Capital I Inc., as Depositor, GMAC
Commercial Mortgage Corporation, as Master Servicer and as Special Servicer,
LaSalle National Bank, as Trustee and ABN AMRO Bank N.V., as Fiscal Agent. All
capitalized terms used but not otherwise defined herein shall have the
respective meanings set forth in the Pooling and Servicing Agreement. The
Transferor hereby certifies, represents and warrants to you, as Certificate
Registrar, that:
1. No purpose of the Transferor relating to the transfer of the Residual
Certificates by the Transferor to the Transferee is or will be to impede the
assessment or collection of any tax.
2. The Transferor understands that the Transferee has delivered to you a
Transfer Affidavit and Agreement in the form attached to the Pooling and
Servicing Agreement. The Transferor does not know or believe that any
representation contained therein is false.
E-1B-1
<PAGE>
3. The Transferor has at the time of this transfer conducted a reasonable
investigation of the financial condition of the Transferee as contemplated by
Treasury regulation Section 1.860E-1(c)(4)(i) and, as a result of that
investigation, the Transferor has determined that the Transferee has
historically paid its debts as they became due and has found no significant
evidence to indicate that the Transferee will not continue to pay its debts as
they become due in the future. The Transferor understands that the transfer of
the Residual Certificates may not be respected for United States income tax
purposes (and the Transferor may continue to be liable for United States income
taxes associated therewith) unless the Transferor has conducted such an
investigation.
Very truly yours,
___________________________________
(Transferor)
By:________________________________
Name:______________________________
Title:_____________________________
E-1B-2
<PAGE>
EXHIBIT F-1
[FORM OF MONTHLY CERTIFICATEHOLDER REPORT]
F-1-1
<PAGE>
ANNEX 1 TO EXHIBIT D-2A
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[for Transferees other than Registered Investment Companies]
The undersigned hereby certifies as follows to [name of Transferor] (the
"Transferor") and [name of Certificate Registrar], as Certificate Registrar,
with respect to the mortgage pass-through certificates being transferred (the
"Transferred Certificates") as described in the Transferee Certificate to which
this certification relates and to which this certification is an Annex:
1. As indicated below, the undersigned is the chief financial officer, a
person fulfilling an equivalent function, or other executive officer of the
entity purchasing the Transferred Certificates (the "Transferee").
2. The Transferee is a "qualified institutional buyer" as that term is
defined in Rule 144A under the Securities Act of 1933, as amended ("Rule 144A")
because (i) the Transferee owned and/or invested on a discretionary basis
$____________________(1) in securities (other than the excluded securities
referred to below) as of the end of the Transferee's most recent fiscal year
(such amount being calculated in accordance with Rule 144A) and (ii) the
Transferee satisfies the criteria in the category marked below.
___ Corporation, etc. The Transferee is a corporation (other than
a bank, savings and loan association or similar institution),
Massachusetts or similar business trust, partnership, or any
organization described in Section 501(c)(3) of the Internal
Revenue Code of 1986.
___ Bank. The Transferee (a) is a national bank or a banking
institution organized under the laws of any State, U.S.
territory or the District of Columbia, the business of which
is substantially confined to banking and is supervised by the
State or territorial banking commission or similar official or
is a foreign bank or equivalent institution, and (b) has an
audited net worth of at least $25,000,000 as demonstrated in
its latest annual financial statements, a copy of which is
attached hereto, as of a date not more than 16 months
preceding the date of sale of the Certificate in the case of a
U.S. bank, and not more than 18 months preceding such date of
sale for a foreign bank or equivalent institution.
- --------
(1) Transferee must own and/or invest on a discretionary basis at least
$100,000,000 in securities unless Transferee is a dealer, and, in that case,
Transferee must own and/or invest on a discretionary basis at least $10,000,000
in securities.
D-2A-1
<PAGE>
___ Savings and Loan. The Transferee (a) is a savings and loan
association, building and loan association, cooperative bank,
homestead association or similar institution, which is
supervised and examined by a State or Federal authority having
supervision over any such institutions or is a foreign savings
and loan association or equivalent institution and (b) has an
audited net worth of at least $25,000,000 as demonstrated in
its latest annual financial statements, a copy of which is
attached hereto, as of a date not more than 16 months
preceding the date of sale of the Certificate in the case of a
U.S. savings and loan association, and not more than 18 months
preceding such date of sale for a foreign savings and loan
association or equivalent institution.
___ Broker-dealer. The Transferee is a dealer registered pursuant
to Section 15 of the Securities Exchange Act of 1934, as
amended.
___ Insurance Company. The Transferee is an insurance company
whose primary and predominant business activity is the writing
of insurance or the reinsuring of risks underwritten by
insurance companies and which is subject to supervision by the
insurance commissioner or a similar official or agency of a
State, U.S. territory or the District of Columbia.
___ State or Local Plan. The Transferee is a plan established and
maintained by a State, its political subdivisions, or any
agency or instrumentality of the State or its political
subdivisions, for the benefit of its employees.
___ ERISA Plan. The Transferee is an employee benefit plan within
the meaning of Title I of the Employee Retirement Income
Security Act of 1974.
___ Investment Advisor. The Transferee is an investment advisor
registered under the Investment Advisers Act of 1940, as
amended.
___ Other. (Please supply a brief description of the entity and a
cross-reference to the paragraph and subparagraph under
subsection (a)(1) of Rule 144A pursuant to which it qualifies.
Note that registered investment companies should complete
Annex 2 rather than this Annex 1.)____________________________
______________________________________________________________
3. The term "securities" as used herein does not include (i) securities of
issuers that are affiliated with the Transferee, (ii) securities that are part
of an unsold allotment to or subscription by the Transferee, if the Transferee
is a dealer, (iii) bank deposit notes and certificates of deposit, (iv) loan
participations, (v) repurchase agreements, (vi) securities owned but subject to
a repurchase agreement and (vii) currency, interest rate and commodity swaps.
For purposes of determining the aggregate amount of securities owned and/or
invested on a discretionary basis by the Transferee, the Transferee did not
include any of the securities referred to in this paragraph.
D-2A-2
<PAGE>
4. For purposes of determining the aggregate amount of securities owned
and/or invested on a discretionary basis by the Transferee, the Transferee used
the cost of such securities to the Transferee, unless the Transferee reports its
securities holdings in its financial statements on the basis of their market
value, and no current information with respect to the cost of those securities
has been published, in which case the securities were valued at market. Further,
in determining such aggregate amount, the Transferee may have included
securities owned by subsidiaries of the Transferee, but only if such
subsidiaries are consolidated with the Transferee in its financial statements
prepared in accordance with generally accepted accounting principles and if the
investments of such subsidiaries are managed under the Transferee's direction.
However, such securities were not included if the Transferee is a
majority-owned, consolidated subsidiary of another enterprise and the Transferee
is not itself a reporting company under the Securities Exchange Act of 1934, as
amended.
5. The Transferee acknowledges that it is familiar with Rule 144A and
understands that the Transferor and other parties related to the Transferred
Certificates are relying and will continue to rely on the statements made herein
because one or more sales to the Transferee may be in reliance on Rule 144A.
___ ___ Will the Transferee be purchasing the Transferred
Yes No Certificates only for the Transferee's own account?
6. If the answer to the foregoing question is "no", then in each case where
the Transferee is purchasing for an account other than its own, such account
belongs to a third party that is itself a "qualified institutional buyer" within
the meaning of Rule 144A, and the "qualified institutional buyer" status of such
third party has been established by the Transferee through one or more of the
appropriate methods contemplated by Rule 144A.
7. The Transferee will notify each of the parties to which this
certification is made of any changes in the information and conclusions herein.
Until such notice is given, the Transferee's purchase of the Transferred
Certificates will constitute a reaffirmation of this certification as of the
date of such purchase. In addition, if the Transferee is a bank or savings and
loan as provided above, the Transferee agrees that it will furnish to such
parties any updated annual financial statements that become available on or
before the date of such purchase, promptly after they become available.
_________________________________________
Print Name of Transferee
By:______________________________________
Name:____________________________________
Title:___________________________________
Date:____________________________________
D-2A-3
<PAGE>
ANNEX 2 TO EXHIBIT D-2A
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[for Transferees that are Registered Investment Companies]
The undersigned hereby certifies as follows to [name of Transferor] (the
"Transferor") and [name of Certificate Registrar], as Certificate Registrar,
with respect to the mortgage pass-through certificate being transferred (the
"Transferred Certificates") as described in the Transferee Certificate to which
this certification relates and to which this certification is an Annex:
1. As indicated below, the undersigned is the chief financial officer, a
person fulfilling an equivalent function, or other executive officer of the
entity purchasing the Transferred Certificates (the "Transferee") or, if the
Transferee is a "qualified institutional buyer" as that term is defined in Rule
144A under the Securities Act of 1933, as amended ("Rule 144A") because the
Transferee is part of a Family of Investment Companies (as defined below), is an
executive officer of the investment adviser (the "Adviser").
2. The Transferee is a "qualified institutional buyer" as defined in Rule
144A because (i) the Transferee is an investment company registered under the
Investment Company Act of 1940, as amended, and (ii) as marked below, the
Transferee alone owned and/or invested on a discretionary basis, or the
Transferee's Family of Investment Companies owned, at least $100,000,000 in
securities (other than the excluded securities referred to below) as of the end
of the Transferee's most recent fiscal year. For purposes of determining the
amount of securities owned by the Transferee or the Transferee's Family of
Investment Companies, the cost of such securities was used, unless the
Transferee or any member of the Transferee's Family of Investment Companies, as
the case may be, reports its securities holdings in its financial statements on
the basis of their market value, and no current information with respect to the
cost of those securities has been published, in which case the securities of
such entity were valued at market.
____ The Transferee owned and/or invested on a discretionary basis
$___________________ in securities (other than the excluded
securities referred to below) as of the end of the
Transferee's most recent fiscal year (such amount being
calculated in accordance with Rule 144A).
____ The Transferee is part of a Family of Investment Companies
which owned in the aggregate $______________ in securities
(other than the excluded securities referred to below) as of
the end of the Transferee's most recent fiscal year (such
amount being calculated in accordance with Rule 144A).
D-2A-1
<PAGE>
3. The term "Family of Investment Companies" as used herein means two or
more registered investment companies (or series thereof) that have the same
investment adviser or investment advisers that are affiliated (by virtue of
being majority owned subsidiaries of the same parent or because one investment
adviser is a majority owned subsidiary of the other).
4. The term "securities" as used herein does not include (i) securities of
issuers that are affiliated with the Transferee or are part of the Transferee's
Family of Investment Companies, (ii) bank deposit notes and certificates of
deposit, (iii) loan participations, (iv) repurchase agreements, (v) securities
owned but subject to a repurchase agreement and (vi) currency, interest rate and
commodity swaps. For purposes of determining the aggregate amount of securities
owned and/or invested on a discretionary basis by the Transferee, or owned by
the Transferee's Family of Investment Companies, the securities referred to in
this paragraph were excluded.
5. The Transferee is familiar with Rule 144A and understands that the
parties to which this certification is being made are relying and will continue
to rely on the statements made herein because one or more sales to the
Transferee will be in reliance on Rule 144A.
____ ____ Will the Transferee be purchasing the Transferred
Certificates only for the Transferee's own account?
Yes No
6. If the answer to the foregoing question is "no", then in each case where
the Transferee is purchasing for an account other than its own, such account
belongs to a third party that is itself a "qualified institutional buyer" within
the meaning of Rule 144A, and the "qualified institutional buyer" status of such
third party has been established by the Transferee through one or more of the
appropriate methods contemplated by Rule 144A.
7. The undersigned will notify the parties to which this certification is
made of any changes in the information and conclusions herein. Until such
notice, the Transferee's purchase of the Transferred Certificates will
constitute a reaffirmation of this certification by the undersigned as of the
date of such purchase.
_________________________________________
Print Name of Transferee or Adviser
By:______________________________________
Name:
Title:
IF AN ADVISER:
_________________________________________
Print Name of Transferee
Date:____________________________________
D-2A-2
<PAGE>
EXHIBIT D-2B
FORM II OF TRANSFEREE CERTIFICATE
FOR TRANSFERS OF DEFINITIVE
PRIVATELY OFFERED CERTIFICATES
[Date]
[CERTIFICATE REGISTRAR]
Re: Morgan Stanley Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 1997-C1 (the "Certificates")
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
_______________________ (the "Transferor") to _______________________________
(the "Transferee") of Class ___ Certificates [having an initial Certificate
Principal Balance as of March __, 1997 (the "Closing Date") of
$__________][evidencing a ____% Percentage Interest in the related Class] (the
"Transferred Certificates"). The Certificates, including the Transferred
Certificates, were issued pursuant to the Pooling and Servicing Agreement, dated
as of March 1, 1997 (the "Pooling and Servicing Agreement"), among Morgan
Stanley Capital I Inc. as depositor (the "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 but
not otherwise defined herein shall have the respective meanings set forth in the
Pooling and Servicing Agreement. The Transferee hereby certifies, represents and
warrants to you, as Certificate Registrar, that:
1. The Transferee is acquiring the Transferred Certificates for its own
account for investment and not with a view to or for sale or transfer in
connection with any distribution thereof, in whole or in part, in any manner
which would violate the Securities Act of 1933, as amended (the "Securities
Act"), or any applicable state securities laws.
2. The Transferee understands that (a) the Class of Certificates to which
the Transferred Certificates belong has not been and will not be registered
under the Securities Act or registered or qualified under any applicable state
securities laws, (b) none of the Depositor, the Trustee or the Certificate
Registrar is obligated so to register or qualify the Class of Certificates to
which the Transferred Certificates belong, and (c) no Transferred Certificate
may be resold or transferred unless it is (i) registered pursuant to the
Securities Act and registered or qualified pursuant any applicable state
securities laws or (ii) sold or transferred in transactions which are exempt
from such registration and qualification and the Certificate Registrar has
received either: (A) a certificate from the Certificateholder desiring to effect
such transfer substantially in the form attached as Exhibit D-1 to the Pooling
and Servicing Agreement and a certificate from such
D-2B-1
<PAGE>
Certificateholder's prospective transferee substantially in the form attached
either as Exhibit D-2A or as Exhibit D-2B to the Pooling and Servicing
Agreement; or (C) an opinion of counsel satisfactory to the Trustee with respect
to the availability of such exemption from registration under the Securities
Act, together with copies of the written certification(s) from the transferor
and/or transferee setting forth the facts surrounding the transfer upon which
such opinion is based.
3. The Transferee understands that it may not sell or otherwise transfer
any Transferred Certificate except in compliance with the provisions of Section
3.3 of the Pooling and Servicing Agreement, which provisions it has carefully
reviewed, and that each Transferred Certificate will bear the following legends:
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") OR THE
SECURITIES LAWS OF ANY STATE. ANY RESALE, TRANSFER OR OTHER
DISPOSITION OF THIS CERTIFICATE OR ANY INTEREST HEREIN WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH
DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH IS IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR OTHER
RETIREMENT ARRANGEMENT THAT IS SUBJECT TO THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE"), OR TO ANY PERSON WHO IS DIRECTLY OR
INDIRECTLY PURCHASING THIS CERTIFICATE ON BEHALF OF, AS NAMED
FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH EMPLOYEE
BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, WILL BE REGISTERED
EXCEPT IN COMPLIANCE WITH THE PROCEDURES DESCRIBED HEREIN.
4. Neither the Transferee nor anyone acting on its behalf has (a) offered,
pledged, sold, disposed of or otherwise transferred any Transferred Certificate,
any interest in any Transferred Certificate or any other similar security to any
person in any manner, (b) solicited any offer to buy or accept a pledge,
disposition or other transfer of any Transferred Certificate, any interest in
any Transferred Certificate or any other similar security from any person in any
manner, (c) otherwise approached or negotiated with respect to any Transferred
Certificate, any interest in any Certificate or any other similar security with
any person in any manner, (d) made any general solicitation with respect to any
Certificate, any interest in any Transferred Certificate or any other similar
security by means of general advertising or in any other manner, or (e) taken
any other action with respect to any Transferred Certificate, any interest in
any Transferred Certificate or any other similar security, which (in the case of
any of the acts described in clauses (a) through (e) above) would constitute a
distribution of the Transferred Certificates under the
D-2B-2
<PAGE>
Securities Act, would render the disposition of the Transferred Certificates a
violation of Section 5 of the Securities Act or any state securities law or
would require registration or qualification of the Transferred Certificates
pursuant thereto. The Transferee will not act, nor has it authorized or will it
authorize any person to act, in any manner set forth in the foregoing sentence
with respect to any Transferred Certificate, any interest in any Transferred
Certificate or any other similar security.
5. The Transferee has been furnished with all information regarding (a) the
Depositor, (b) the Transferred Certificates and distributions thereon, (c) the
Pooling and Servicing Agreement and the Trust Fund created pursuant thereto, (d)
the nature, performance and servicing of the Mortgage Loans, and (e) all related
matters, that it has requested.
6. The Transferee is an "accredited investor" as defined in any of
paragraphs (1), (2), (3) and (7) of Rule 501(a) under the Securities Act or an
entity in which all of the equity owners come within such paragraphs. The
Transferee has such knowledge and experience in financial and business matters
as to be capable of evaluating the merits and risks of an investment in the
Transferred Certificate; the Transferee has sought such accounting, legal and
tax advice as it has considered necessary to make an informed investment
decision; and the Transferee is able to bear the economic risks of such
investment and can afford a complete loss of such investment.
Very truly yours,
_________________________________________
(Transferee)
By:______________________________________
Name:____________________________________
Title:___________________________________
D-2B-3
<PAGE>
EXHIBIT D-3A
FORM I OF TRANSFEREE CERTIFICATE
FOR TRANSFERS OF INTERESTS IN
BOOK-ENTRY PRIVATELY OFFERED CERTIFICATES
[Date]
[TRANSFEROR]
Re: Morgan Stanley Capital I Inc., Commercial Mortgage Pass-Through
Certificate, Series 1997-C1, Class (the "Certificates")
Dear Sirs:
This letter is delivered to you in connection with the transfer by
_____________________ (the "Transferor") to ______________________ (the
"Transferee") of a Certificate (the "Transferred Certificate") having an initial
principal balance as of March ___, 1997 (the "Closing Date") of $__________. The
Certificates were issued pursuant to the Pooling and Servicing Agreement (the
"Pooling and Servicing Agreement"), dated as of March 1, 1997, among Morgan
Stanley Capital I Inc. as depositor (the "Depositor"), GMAC Commercial Mortgage
Corporation as master servicer and as special servicer, LaSalle National Bank as
trustee and ABN AMRO Bank N.V. as fiscal agent. All terms used herein and not
otherwise defined shall have the meanings set forth in the Pooling and Servicing
Agreement. The Transferee hereby certifies, represents and warrants to you, and
for the benefit of the Depositor and the Trustee, that:
1. The Transferee is acquiring the Transferred Certificate for its own
account for investment and not with a view to or for sale or transfer in
connection with any distribution thereof, in whole or in part, in any manner
which would violate the Securities Act of 1933, as amended (the "Securities
Act"), or any applicable state securities laws.
2. The Transferee understands that (a) the Certificates have not been and
will not be registered under the Securities Act or registered or qualified under
any applicable state securities laws, (b) none of the Depositor, the Trustee or
the Certificate Registrar is obligated so to register or qualify the
Certificates and (c) no interest in the Certificates may be sold or transferred
unless (i) such Certificates are registered pursuant to the Securities Act and
registered or qualified pursuant to any applicable state securities laws or (ii)
such interest sold or transferred in transactions which are exempt from such
registration and qualification and the Certificate Owner desiring to effect such
transfer has received either (A) a certification from such Certificate
D-3A-1
<PAGE>
Owner's prospective transferee (substantially in the form attached to the
Pooling and Servicing Agreement) setting forth the facts surrounding the
transfer or (B) an opinion of counsel satisfactory to the Certificate Registrar
with respect to the availability of such exemption, together with copies of the
certification(s) from the transferor and/or transferee setting forth the facts
surrounding the transfer upon which such opinion is based.
3. The Transferee understands that it may not sell or otherwise transfer
any portion of its interest in the Transferred Certificate except in compliance
with the provisions of Section 3.3 of the Pooling and Servicing Agreement, which
provisions it has carefully reviewed, and that the Transferred Certificate will
bear legends substantially to the following effect:
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES
LAWS OF ANY STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE
WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION
WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH
THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO
HEREIN.
- AND -
NO TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR OTHER
RETIREMENT ARRANGEMENT THAT IS SUBJECT TO THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE"), OR TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY
PURCHASING THIS CERTIFICATE ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF,
OR WITH ASSETS OF ANY SUCH EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT, WILL BE REGISTERED EXCEPT IN COMPLIANCE WITH THE PROCEDURES
DESCRIBED HEREIN.
4. Neither the Transferee nor anyone acting on its behalf has (a) offered,
pledged, sold, disposed of or otherwise transferred any Certificate, any
interest in any Certificate or any other similar security to any person in any
manner, (b) solicited any offer to buy or accept a pledge, disposition or other
transfer of any Certificate, any interest in any Certificate or any other
similar security from any person in any manner, (c) otherwise approached or
negotiated with respect to any Certificate, any interest in any Certificate or
any other similar security with any person in any manner, (d) made any general
solicitation by means of general advertising or in any other manner, or (e)
taken any other action, that (in the case of any of the acts described in
clauses (a) through (e) above) would constitute a distribution of any
Certificate under the Securities Act, would render the disposition of any
Certificate a violation of Section 5 of the Securities Act or any state
securities law or would require registration or qualification of any Certificate
pursuant thereto. The Transferee will not act, nor has it authorized or will it
authorize any person to act, in any manner set forth in the foregoing sentence
with respect to any Certificate.
D-3A-2
<PAGE>
5. The Transferee has been furnished with all information regarding (a) the
Depositor, (b) the Transferred Certificates and distributions thereon, (c) the
Pooling and Servicing Agreement, and (d) all related matters, that it has
requested.
6. The Transferee is an institutional "accredited investor" as defined in
Rule 501(a) (1), (2), (3) or (7) under the Securities Act and has such knowledge
and experience in financial and business matters as to be capable of evaluating
the merits and risks of an investment in the Certificates; the Transferee has
sought such accounting, legal and tax advice as it has considered necessary to
make an informed investment decision; and the Transferee is able to bear the
economic risks of such an investment and can afford a complete loss of such
investment.
Very truly yours,
_________________________________________
(Transferee)
By:______________________________________
Name:____________________________________
Title:___________________________________
D-3A-3
<PAGE>
EXHIBIT D-3B
FORM II OF TRANSFEREE CERTIFICATE
FOR TRANSFERS OF INTERESTS IN
BOOK-ENTRY PRIVATELY OFFERED CERTIFICATES
[Date]
[TRANSFEROR]
Re: Morgan Stanley Capital I Inc., Commercial Mortgage Pass-Through
Certificate, Series 1997-C1, Class (the "Certificates")
Dear Sirs:
This letter is delivered to you in connection with the transfer by
_____________ ________ (the "Transferor") to ______________________ (the
"Transferee") of a Certificate (the "Transferred Certificate") having an initial
principal balance as of March ___, 1997 (the "Closing Date") of $__________. The
Certificates were issued pursuant to the Pooling and Servicing Agreement (the
"Pooling and Servicing Agreement"), dated as of March 1, 1997, among Morgan
Stanley Capital I Inc. as depositor (the "Depositor"), GMAC Commercial Mortgage
Corporation as master servicer and as special servicer, LaSalle National Bank as
trustee and ABN AMRO Bank N.V. as fiscal agent. All terms used herein and not
otherwise defined shall have the meanings set forth in the Pooling and Servicing
Agreement. The Transferee hereby certifies, represents and warrants to you, and
for the benefit of the Depositor and the Trustee, that:
1. The Transferee is a "qualified institutional buyer" as that term is
defined in Rule 144A ("Rule 144A") under the Securities Act of 1933, as
amended (the "Securities Act"), and has completed one of the forms of
certification to that effect attached hereto as Annex 1 and Annex 2. The
Transferee is aware that the sale to it is being made in reliance on Rule
144A. The Transferee is acquiring the Transferred Certificate for its own
account or for the account of a qualified institutional buyer, and
understands that such Certificate or any interest therein may be resold,
pledged or transferred only (i) to a person reasonably believed to be a
qualified institutional buyer that purchases for its own account or for the
account of a qualified institutional buyer to whom notice is given that the
resale, pledge or transfer is being made in reliance on Rule 144A, or (ii)
pursuant to another exemption from registration under the Securities Act.
2. The Transferee understands that (a) the Class of Certificates to
which the Transferred Certificate belongs have not been and will not be
registered under the
D-3B-1
<PAGE>
Securities Act or registered or qualified under any applicable state
securities laws, (b) none of the Depositor, the Trustee or the Certificate
Registrar is obligated so to register or qualify the Certificates and (c)
no interest in the Certificates may be sold or transferred unless (i) such
Certificates are registered pursuant to the Securities Act and registered
or qualified pursuant to any applicable state securities laws or (ii) such
interest sold or transferred in transactions which are exempt from such
registration and qualification and the Certificate Owner desiring to effect
such transfer has received either (A) a certification from such Certificate
Owner's prospective transferee (substantially in the form attached to the
Pooling and Servicing Agreement) setting forth the facts surrounding the
transfer or (B) an opinion of counsel satisfactory to the Certificate
Registrar with respect to the availability of such exemption, together with
copies of the certification(s) from the transferor and/or transferee
setting forth the facts surrounding the transfer upon which such opinion is
based.
3. The Transferee understands that it may not sell or otherwise transfer
any portion of its interest in the Transferred Certificate except in compliance
with the provisions of Section 3.3 of the Pooling and Servicing Agreement, which
provisions it has carefully reviewed, and that the Transferred Certificate will
bear legends substantially to the following effect:
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES
LAWS OF ANY STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE
WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION
WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH
THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO
HEREIN.
- AND -
NO TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR OTHER
RETIREMENT ARRANGEMENT THAT IS SUBJECT TO THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE"), OR TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY
PURCHASING THIS CERTIFICATE ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF,
OR WITH ASSETS OF ANY SUCH EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT, WILL BE REGISTERED EXCEPT IN COMPLIANCE WITH THE PROCEDURES
DESCRIBED HEREIN.
D-3B-2
<PAGE>
4. The Transferee has been furnished with all information regarding (a) the
Certificates and distributions thereon, (b) the nature, performance and
servicing of the Mortgage Loans, (c) the Pooling and Servicing Agreement, and
(d) any credit enhancement mechanism associated with the Transferred
Certificate, that it has requested.
Very truly yours,
_________________________________________
(Transferee)
By:______________________________________
Name:____________________________________
Title:___________________________________
D-3B-3
<PAGE>
ANNEX 1 TO EXHIBIT D-3B
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Transferees Other Than Registered Investment Companies]
The undersigned hereby certifies as follows to [name of Transferor] (the
"Transferor"), and for the benefit of the Depositor and the Trustee, as
Certificate Registrar, with respect to the commercial mortgage pass-through
certificate being transferred (the "Transferred Certificate") as described in
the Transferee Certificate to which this certification relates and to which this
certification is an Annex:
1. As indicated below, the undersigned is the chief financial officer, a
person fulfilling an equivalent function, or other executive officer of the
entity purchasing the Transferred Certificate (the "Transferee").
2. The Transferee is a "qualified institutional buyer" as that term is
defined in Rule 144A under the Securities Act of 1933, as amended ("Rule 144A"),
because (i) the Transferee owned and/or invested on a discretionary basis
$____________________(2) in securities (other than the excluded securities
referred to below) as of the end of the Transferee's most recent fiscal year
(such amount being calculated in accordance with Rule 144A) and (ii) the
Transferee satisfies the criteria in the category marked below.
___ Corporation, etc. The Transferee is a corporation (other than
a bank, savings and loan association or similar institution),
Massachusetts or similar business trust, partnership, or any
organization described in Section 501(c)(3) of the Internal
Revenue Code of 1986, as amended.
___ Bank. The Transferee (a) is a national bank or a banking
institution organized under the laws of any State, U.S.
territory or the District of Columbia, the business of which
is substantially confined to banking and is supervised by the
State or territorial banking commission or similar official or
is a foreign bank or equivalent institution, and (b) has an
audited net worth of at least $25,000,000 as demonstrated in
its latest annual financial statements, a copy of which is
attached hereto, as of a date not more than 16 months
preceding the date of sale of the Certificate in the case of a
U.S. bank, and not more than 18 months preceding such date of
sale for a foreign bank or equivalent institution.
- --------
(2) Transferee must own and/or invest on a discretionary basis at least
$100,000,000 in securities unless Transferee is a dealer, and, in that case,
Transferee must own and/or invest on a discretionary basis at least $10,000,000
in securities.
D-3B-1
<PAGE>
___ Savings and Loan. The Transferee (a) is a savings and loan
association, building and loan association, cooperative bank,
homestead association or similar institution, which is
supervised and examined by a State or Federal authority having
supervision over any such institutions or is a foreign savings
and loan association or equivalent institution and (b) has an
audited net worth of at least $25,000,000 as demonstrated in
its latest annual financial statements, a copy of which is
attached hereto, as of a date not more than 16 months
preceding the date of sale of the Certificate in the case of a
U.S. savings and loan association, and not more than 18 months
preceding such date of sale for a foreign savings and loan
association or equivalent institution.
___ Broker-dealer. The Transferee is a dealer registered pursuant
to Section 15 of the Securities Exchange Act of 1934, as
amended.
___ Insurance Company. The Transferee is an insurance company
whose primary and predominant business activity is the writing
of insurance or the reinsuring of risks underwritten by
insurance companies and which is subject to supervision by the
insurance commissioner or a similar official or agency of a
State, U.S. territory or the District of Columbia.
___ State or Local Plan. The Transferee is a plan established and
maintained by a State, its political subdivisions, or any
agency or instrumentality of the State or its political
subdivisions, for the benefit of its employees.
___ ERISA Plan. The Transferee is an employee benefit plan within
the meaning of Title I of the Employee Retirement Income
Security Act of 1974, as amended.
___ Investment Advisor. The Transferee is an investment advisor
registered under the Investment Advisers Act of 1940, as
amended.
___ Other. (Please supply a brief description of the entity and a
cross-reference to the paragraph and subparagraph under
subsection (a)(1) of Rule 144A pursuant to which it qualifies.
Note that registered investment companies should complete
Annex 2 rather than this Annex 1.)
______________________________________________________________
______________________________________________________________
______________________________________________________________
3. The term "securities" as used herein does not include (i) securities of
issuers that are affiliated with the Transferee, (ii) securities that are part
of an unsold allotment to or subscription by the Transferee, if the Transferee
is a dealer, (iii) bank deposit notes and certificates of deposit, (iv) loan
participations, (v) repurchase agreements, (vi) securities owned but subject to
a repurchase agreement and (vii) currency, interest rate and commodity swaps.
For purposes of determining the aggregate amount of securities owned and/or
invested on a
D-3B-2
<PAGE>
discretionary basis by the Transferee, the Transferee did not include any of the
securities referred to in this paragraph.
4. For purposes of determining the aggregate amount of securities owned
and/or invested on a discretionary basis by the Transferee, the Transferee used
the cost of such securities to the Transferee, unless the Transferee reports its
securities holdings in its financial statements on the basis of their market
value, and no current information with respect to the cost of those securities
has been published, in which case the securities were valued at market. Further,
in determining such aggregate amount, the Transferee may have included
securities owned by subsidiaries of the Transferee, but only if such
subsidiaries are consolidated with the Transferee in its financial statements
prepared in accordance with generally accepted accounting principles and if the
investments of such subsidiaries are managed under the Transferee's direction.
However, such securities were not included if the Transferee is a
majority-owned, consolidated subsidiary of another enterprise and the Transferee
is not itself a reporting company under the Securities Exchange Act of 1934, as
amended.
5. The Transferee acknowledges that it is familiar with Rule 144A and
understands that the Transferor and other parties related to the Transferred
Certificate are relying and will continue to rely on the statements made herein
because one or more sales to the Transferee may be in reliance on Rule 144A.
___ ___ Will the Transferee be purchasing the Transferred
Yes No Certificate only for the Transferee's own account?
6. If the answer to the foregoing question is "no", then in each case where
the Transferee is purchasing for an account other than its own, such account
belongs to a third party that is itself a "qualified institutional buyer" within
the meaning of Rule 144A, and the "qualified institutional buyer" status of such
third party has been established by the Transferee through one or more of the
appropriate methods contemplated by Rule 144A.
7. The Transferee will notify each of the parties to which this
certification is made of any changes in the information and conclusions herein.
Until such notice is given, the Transferee's purchase of the Transferred
Certificate will constitute a reaffirmation of this certification as of the date
of such purchase. In addition, if the Transferee is a bank or savings and loan
as provided above, the Transferee agrees that it will furnish to such parties
any updated annual financial statements that become available on or before the
date of such purchase, promptly after they become available.
_________________________________________
Print Name of Transferee
By:______________________________________
Name:____________________________________
Title:___________________________________
Date:____________________________________
D-3B-3
<PAGE>
ANNEX 2 TO EXHIBIT D-3B
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Transferees That Are Registered Investment Companies]
The undersigned hereby certifies as follows to [name of Transferor] (the
"Transferor") , and for the benefit of the Depositor and the Trustee, with
respect to the commercial mortgage pass-through certificate being transferred
(the "Transferred Certificate") as described in the Transferee Certificate to
which this certification relates and to which this certification is an Annex:
1. As indicated below, the undersigned is the chief financial officer, a
person fulfilling an equivalent function, or other executive officer of the
entity purchasing the Transferred Certificate (the "Transferee") or, if the
Transferee is a "qualified institutional buyer" as that term is defined in Rule
144A under the Securities Act of 1933, as amended ("Rule 144A"), because the
Transferee is part of a Family of Investment Companies (as defined below), is an
executive officer of the investment adviser (the "Adviser").
2. The Transferee is a "qualified institutional buyer" as defined in Rule
144A because (i) the Transferee is an investment company registered under the
Investment Company Act of 1940, as amended, and (ii) as marked below, the
Transferee alone owned and/or invested on a discretionary basis, or the
Transferee's Family of Investment Companies owned, at least $100,000,000 in
securities (other than the excluded securities referred to below) as of the end
of the Transferee's most recent fiscal year. For purposes of determining the
amount of securities owned by the Transferee or the Transferee's Family of
Investment Companies, the cost of such securities was used, unless the
Transferee or any member of the Transferee's Family of Investment Companies, as
the case may be, reports its securities holdings in its financial statements on
the basis of their market value, and no current information with respect to the
cost of those securities has been published, in which case the securities of
such entity were valued at market.
____ The Transferee owned and/or invested on a discretionary basis
$___________________ in securities (other than the excluded
securities referred to below) as of the end of the
Transferee's most recent fiscal year (such amount being
calculated in accordance with Rule 144A).
____ The Transferee is part of a Family of Investment Companies
which owned in the aggregate $______________ in securities
(other than the excluded securities referred to below) as of
the end of the Transferee's most recent fiscal year (such
amount being calculated in accordance with Rule 144A).
D-3B-4
<PAGE>
3. The term "Family of Investment Companies" as used herein means two or
more registered investment companies (or series thereof) that have the same
investment adviser or investment advisers that are affiliated (by virtue of
being majority owned subsidiaries of the same parent or because one investment
adviser is a majority owned subsidiary of the other).
4. The term "securities" as used herein does not include (i) securities of
issuers that are affiliated with the Transferee or are part of the Transferee's
Family of Investment Companies, (ii) bank deposit notes and certificates of
deposit, (iii) loan participations, (iv) repurchase agreements, (v) securities
owned but subject to a repurchase agreement and (vi) currency, interest rate and
commodity swaps. For purposes of determining the aggregate amount of securities
owned and/or invested on a discretionary basis by the Transferee, or owned by
the Transferee's Family of Investment Companies, the securities referred to in
this paragraph were excluded.
5. The Transferee is familiar with Rule 144A and understands that the
parties to which this certification is being made are relying and will continue
to rely on the statements made herein because one or more sales to the
Transferee will be in reliance on Rule 144A.
____ ____ Will the Transferee be purchasing the Transferred
Certificate only for the Transferee's own account?
Yes No
6. If the answer to the foregoing question is "no", then in each case where
the Transferee is purchasing for an account other than its own, such account
belongs to a third party that is itself a "qualified institutional buyer" within
the meaning of Rule 144A, and the "qualified institutional buyer" status of such
third party has been established by the Transferee through one or more of the
appropriate methods contemplated by Rule 144A.
7. The undersigned will notify the parties to which this certification is
made of any changes in the information and conclusions herein. Until such
notice, the Transferee's purchase of the Transferred Certificate will constitute
a reaffirmation of this certification by the undersigned as of the date of such
purchase.
_________________________________________
Print Name of Transferee or Adviser
By:______________________________________
Name:____________________________________
Title:___________________________________
IF AN ADVISER:
_________________________________________
Print Name of Transferee
Date:____________________________________
D-3B-5
<PAGE>
EXHIBIT F-1
FORM OF MONTHLY CERTIFICATEHOLDER REPORT
<PAGE>
ABN AMRO Statement Date: 04/15/97
LaSalle National Bank Payment Date: 04/15/97
Prior Payment: NA
Record Date: 03/31/97
Morgan Stanley Capital I Inc.
GMAC Commercial Mortgage Corporation, as Master and Special Servicer
Commercial Mortgage Pass-Through Certificates
Series 1997-C1
ABN AMRO Acct: 67-7721-20-1
Administrator:
Linda Wirfel (800) 246-5761
135 S. LaSalle Street Suite 1740 WAC: 8.939995%
Chicago, IL 60603 WAMM: 120
================================================================================
Number of Pages
---------------
Table of Contents 1
REMIC Certificate Report 4
Other Related Information 2
Asset Backed Facts Sheets 3
Delinquency Loan Detail 2
Mortgage Loan Characteristics 8
Loan Level Listing 6
Total Pages Included In This Package 26
Specially Serviced Loan Detail Appendix A
Modified Loan Detail Appendix B
Realized Loss Detail Appendix C
================================================================================
Page 1 of 26
04/11/97 - 16:20 (A287-A301) (C)1997 LaSalle National Bank
<PAGE>
ABN AMRO Statement Date: 04/15/97
LaSalle National Bank Payment Date: 04/15/97
Prior Payment: NA
Record Date: 03/31/97
Morgan Stanley Capital I Inc.
GMAC Commercial Mortgage Corporation, as Master and Special Servicer
Commercial Mortgage Pass-Through Certificates
Series 1997-C1
Administrator:
Linda Wirfel (800) 246-5761
135 S. LaSalle Street Suite 1740 WAC:
Chicago, IL 60603 WAMM:
ABN AMRO Acct: 67-7721-20-1
REMIC III
<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 $,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>
A-1A 61,700,000.00 61,700,000.000 0.00 0.00 0.00 61,700,000.00 0.00 0.00
61745MAE3 1000.000000000 1000.000000000 0.000000000 0.000000000 0.000000000 1000.000000000 0.000000000 0.000000000
A-1B 193,000,000.00 193,000,000.00 0.00 0.00 0.00 193,000,000.00 0.00 0.00
61745MAF0 1000.000000000 1000.000000000 0.000000000 0.000000000 0.000000000 1000.000000000 0.000000000 0.000000000
A-1C 139,496,000.00 139,496,000.00 0.00 0.00 0.00 139,496,000.00 0.00 0.00
61745MAG8 1000.000000000 1000.000000000 0.000000000 0.000000000 0.000000000 1000.000000000 0.000000000 0.000000000
A-2 38,248,484.00 38,248,484.00 0.00 0.00 0.00 38,248,484.00 0.00 0.00
61745MAH2 1000.000000000 1000.000000000 0.000000000 0.000000000 0.000000000 1000.000000000 0.000000000 0.000000000
I0-1 (*4) 601,807,012.31 N 601,807,012.31 0.00 0.00 0.00 601,807,012.31 0.00 0.00
61745MAJ2 1000.000000000 1000.000000000 0.000000000 0.000000000 0.000000000 1000.000000000 0.000000000 0.000000000
I0-2 38,248,372.29 N 38,248,372.29 0.00 0.00 0.00 38,248,372.29 0.00 0.00
61745MAK9 1000.000000000 1000.000000000 0.000000000 0.000000000 0.000000000 1000.000000000 0.000000000 0.000000000
B 51,252,000.00 51,252,000.00 0.00 0.00 0.00 51,252,000.00 0.00 0.00
61745MAL7 1000.000000000 1000.000000000 0.000000000 0.000000000 0.000000000 1000.000000000 0.000000000 0.000000000
C 38,439,000.00 38,439,000.00 0.00 0.00 0.00 38,439,000.00 0.00 0.00
61745MAM5 1000.000000000 1000.000000000 0.000000000 0.000000000 0.000000000 1000.000000000 0.000000000 0.000000000
D 35,236,000.00 35,236,000.00 0.00 0.00 0.00 35,236,000.00 0.00 0.00
61745MAN3 1000.000000000 1000.000000000 0.000000000 0.000000000 0.000000000 1000.000000000 0.000000000 0.000000000
E 6,406,000.00 6,406,000.00 0.00 0.00 0.00 6,406,000.00 0.00 0.00
61745MAP8 1000.000000000 1000.000000000 0.000000000 0.000000000 0.000000000 1000.000000000 0.000000000 0.000000000
F 19,220,000.00 19,220,000.00 0.00 0.00 0.00 19,220,000.00 0.00 0.00
61745MAQ6 1000.000000000 1000.000000000 0.000000000 0.000000000 0.000000000 1000.000000000 0.000000000 0.000000000
G 11,211,000.00 11,211,000.00 0.00 0.00 0.00 11,211,000.00 0.00 0.00
61745MAR4 1000.000000000 1000.000000000 0.000000000 0.000000000 0.000000000 1000.000000000 0.000000000 0.000000000
H 20,821,000.00 20,821,000.00 0.00 0.00 0.00 20,821,000.00 0.00 0.00
61745MAS2 1000.000000000 1000.000000000 0.000000000 0.000000000 0.000000000 1000.000000000 0.000000000 0.000000000
J 25,628,439.00 25,628,439.00 0.00 0.00 0.00 25,628,439.00 0.00 0.00
61745MAT0 1000.000000000 1000.000000000 0.000000000 0.000000000 0.000000000 1000.000000000 0.000000000 0.000000000
R-III 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
9ABSA299 1000.000000000 1000.000000000 0.000000000 0.000000000 0.000000000 1000.000000000 0.000000000 0.000000000
640,657,923.00 640,657,923.00 0.00 0.00 0.00 640,657,923.00 0.00 0.00
====================================================================================================================================
Total P&I Payment 0.00
=============================
</TABLE>
Notes: (1) N denotes notional balance not included in total (2) Interest Paid
minus Interest Adjustment minus Deferred Interest equals Accrual (3) Estimated
(4)* The Effective Notional Amount will be used up to and including the Class
A-2 Crossover Date. See Page 7
04/11/97 - 16:20 (A287-A301) 1997 LaSalle National Bank Page 2 of 26
<PAGE>
ABN AMRO Statement Date: 04/15/97
LaSalle National Bank Payment Date: 04/15/97
Prior Payment: NA
Record Date: 03/31/97
Morgan Stanley Capital I Inc.
GMAC Commercial Mortgage Corporation, as Master and Special Servicer
Commercial Mortgage Pass-Through Certificates
Series 1997-C1
Administrator:
Linda Wirfel (800) 246-5761
135 S. LaSalle Street Suite 1740 WAC:
Chicago, IL 60603 WAMM:
ABN AMRO Acct: 67-7721-20-1
REMIC II
<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 $,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>
A-1A 61,700.00 61,700.000 0.00 0.00 0.00 61,700.00 0.00 0.00
None 1000.000000000 1000.000000000 0.000000000 0.000000000 0.000000000 1000.000000000 0.000000000 0.000000000
A-1B 193,000.00 193,000.00 0.00 0.00 0.00 193,000.00 0.00 0.00
None 1000.000000000 1000.000000000 0.000000000 0.000000000 0.000000000 1000.000000000 0.000000000 0.000000000
A-1C 139,496.00 139,496.00 0.00 0.00 0.00 139,496.00 0.00 0.00
None 1000.000000000 1000.000000000 0.000000000 0.000000000 0.000000000 1000.000000000 0.000000000 0.000000000
A-2 38,248.48 38,248.48 0.00 0.00 0.00 38,248.48 0.00 0.00
None 1000.000000000 1000.000000000 0.000000000 0.000000000 0.000000000 1000.000000000 0.000000000 0.000000000
I0-2 38,248,372.29N 38,248,372.29 0.00 0.00 0.00 38,248,372.29 0.00 0.00
None 1000.000000000 1000.000000000 0.000000000 0.000000000 0.000000000 1000.000000000 0.000000000 0.000000000
LG1 601,807,012.31 601,807,012.31 0.00 0.00 0.00 601,807,012.31 0.00 0.00
None 1000.000000000 1000.000000000 0.000000000 0.000000000 0.000000000 1000.000000000 0.000000000 0.000000000
LG2 38,210,123.81 38,210,123.81 0.00 0.00 0.00 38,210,123.81 0.00 0.00
None 1000.000000000 1000.000000000 0.000000000 0.000000000 0.000000000 1000.000000000 0.000000000 0.000000000
B 51,252.00 51,252.00 0.00 0.00 0.00 51,252.00 0.00 0.00
None 1000.000000000 1000.000000000 0.000000000 0.000000000 0.000000000 1000.000000000 0.000000000 0.000000000
C 38,439.00 38,439.00 0.00 0.00 0.00 38,439.00 0.00 0.00
None 1000.000000000 1000.000000000 0.000000000 0.000000000 0.000000000 1000.000000000 0.000000000 0.000000000
D 35,236.00 35,236.00 0.00 0.00 0.00 35,236.00 0.00 0.00
None 1000.000000000 1000.000000000 0.000000000 0.000000000 0.000000000 1000.000000000 0.000000000 0.000000000
E 6,406.00 6,406.00 0.00 0.00 0.00 6,406.00 0.00 0.00
None 1000.000000000 1000.000000000 0.000000000 0.000000000 0.000000000 1000.000000000 0.000000000 0.000000000
F 19,220.00 19,220.00 0.00 0.00 0.00 19,220.00 0.00 0.00
None 1000.000000000 1000.000000000 0.000000000 0.000000000 0.000000000 1000.000000000 0.000000000 0.000000000
G 11,211.00 11,211.00 0.00 0.00 0.00 11,211.00 0.00 0.00
None 1000.000000000 1000.000000000 0.000000000 0.000000000 0.000000000 1000.000000000 0.000000000 0.000000000
H 20,821.00 20,821.00 0.00 0.00 0.00 20,821.00 0.00 0.00
None 1000.000000000 1000.000000000 0.000000000 0.000000000 0.000000000 1000.000000000 0.000000000 0.000000000
J 25,628.44 25,628.44 0.00 0.00 0.00 25,628.44 0.00 0.00
None 1000.000000000 1000.000000000 0.000000000 0.000000000 0.000000000 1000.000000000 0.000000000 0.000000000
================================================================================================================================
</TABLE>
Note: (1) N denotes notional balance not included in total (2) Interest Paid
minus Interest Adjustment minus Deferred Interest equals Accrual (3) Estimated
04/11/97 - 16:20 (A287-A301) 1997 LaSalle National Bank Page 3 of 26
<PAGE>
ABN AMRO Statement Date: 04/15/97
LaSalle National Bank Payment Date: 04/15/97
Prior Payment: NA
Record Date: 03/31/97
Morgan Stanley Capital I Inc.
GMAC Commercial Mortgage Corporation, as Master and Special Servicer
Commercial Mortgage Pass-Through Certificates
Series 1997-C1
Administrator:
Linda Wirfel (800) 246-5761
135 S. LaSalle Street Suite 1740 WAC:
Chicago, IL 60603 WAMM:
ABN AMRO Acct: 67-7721-20-1
REMIC II
<TABLE>
<CAPTION>
=========================================================================
Original Opening Principal Principal
Class Face Value(1) Balance Payment Adj. or Loss
CUSIP Per $1,000 Per $1,000 Per $,000 Per $1,000
- -------------------------------------------------------------------------
<S> <C> <C> <C> <C>
R-II 0.00 0.00 0.00 0.00
9ABSA300 1000.000000000 1000.000000000 0.000000000 0.000000000
640,657,794.04 640,657,794.04 0.00 0.00
=========================================================================
<CAPTION>
====================================================================================
Negative Closing Interest Interest Pass-Through
Class Amortization Balance Payment Adjustment Rate (2)
CUSIP Per $1,000 Per $1,000 Per $1,000 Per $1,000 Next Rate (3)
- ------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
R-II 0.00 0.00 0.00 0.00
9ABSA300 0.000000000 0.000000000 0.000000000 0.000000000
0.00 640,078,651.38 0.00 0.00
====================================================================================
Total P&I Payment 0.00
</TABLE>
Notes: (1) N denotes notional balance not included in total (2) Interest Paid
minus Interest Adjustment minus Deferred Interest equals Accrual (3) Estimated
04/11/97 - 16:20 (A287-A301) 1997 LaSalle National Bank Page 4 of 26
<PAGE>
ABN AMRO Statement Date: 04/15/97
LaSalle National Bank Payment Date: 04/15/97
Prior Payment: NA
Record Date: 03/31/97
Morgan Stanley Capital I Inc.
GMAC Commercial Mortgage Corporation, as Master and Special Servicer
Commercial Mortgage Pass-Through Certificates
Series 1997-C1
Administrator:
Linda Wirfel (800) 246-5761
135 S. LaSalle Street Suite 1740 WAC:
Chicago, IL 60603 WAMM:
ABN AMRO Acct: 67-7721-20-1
REMIC II
<TABLE>
<CAPTION>
================================================================================
Original Opening Principal
Class Face Value(1) Balance Payment
CUSIP Per $1,000 Per $1,000 Per $,000
- --------------------------------------------------------------------------------
<S> <C> <C> <C>
Regular 640,657,794.04 640,657,794.04 0.00
9ABSA301 1000.000000000 1000.000000000 0.000000000
R-I 0.00 0.00 0.00
9ABSA301 1000.000000000 1000.000000000 0.000000000
640,657,794.04 640,657,794.04 0.00
================================================================================
<CAPTION>
===================================================================================================================================
Principal Negative Closing Interest Interest Pass-Through
Class 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 Next Rate (3)
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Regular 0.00 0.00 640,657,794.04 0.00 0.00
9ABSA301 0.000000000 0.000000000 1000.000000000 0.000000000 0.000000000
R-I 0.00 0.00 0.00 0.00 0.00
9ABSA301 0.000000000 0.000000000 1000.000000000 0.000000000 0.000000000
0.00 0.00 640,078,651.38 0.00 0.00
===================================================================================================================================
Total P&I Payment 0.00
</TABLE>
Notes: (1) N denotes notional balance not included in total (2) Interest Paid
minus Interest Adjustment minus Deferred Interest equals Accrual (3) Estimated
04/11/97 - 16:20 (A287-A301) 1997 LaSalle National Bank Page 5 of 26
<PAGE>
ABN AMRO Statement Date: 04/15/97
LaSalle National Bank Payment Date: 04/15/97
Prior Payment: NA
Record Date: 03/31/97
Morgan Stanley Capital I Inc.
GMAC Commercial Mortgage Corporation, as Master and Special Servicer
Commercial Mortgage Pass-Through Certificates
Series 1997-C1
Administrator:
Linda Wirfel (800) 246-5761
135 S. LaSalle Street Suite 1740 WAC:
Chicago, IL 60603 WAMM:
ABN AMRO Acct: 67-7721-20-1
Other Related Information
<TABLE>
<CAPTION>
===================================================================================================================================
- ------------------------------------------------------------------------------------------------------------
Certificate Excess Prepay Unpaid Appraisal Reduction Yield Maint.
Class Interest Shortfall Interest Capitalization Amt Premiums
- ------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
A-1A 0.00 0.00 0.00 0.00
A-1B 0.00 0.00 0.00 0.00
A-1C 0.00 0.00 0.00 0.00
A-2 0.00 0.00 0.00 0.00
IO-1 0.00 0.00 0.00 0.00
I0-2 0.00 0.00 0.00 0.00
B 0.00 0.00 0.00 0.00
C 0.00 0.00 0.00 0.00
D 0.00 0.00 0.00 0.00
E 0.00 0.00 0.00 0.00
F 0.00 0.00 0.00 0.00
G 0.00 0.00 0.00 0.00
H 0.00 0.00 0.00 0.00
J 0.00 0.00 0.00 0.00
- ------------------------------------------------------------------------------------------------------------
Totals: 0.00 0.00 0.00 0.00 0.00
- ------------------------------------------------------------------------------------------------------------
</TABLE>
<TABLE>
<CAPTION>
- ----------------------------------------------------------------------------------------------------------------------------------
Advances
Prior Outstanding Current Month Recovered Advances Outstanding
----------------- ------------- --------- --------------------
Principal Interest Principal Interest Principal Interest Principal Interest
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Servicer: 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Trustee: 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Fiscal Agent: 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
- ----------------------------------------------------------------------------------------------------------------------------------
Totals: 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
- ----------------------------------------------------------------------------------------------------------------------------------
Current Period Collected Servicing Fee: 0.00
Current Period Special Servicing Fees: 0.00
Additional Servicing Compensation: 0.00
===================================================================================================================================
</TABLE>
04/11/97 - 16:20 (A287-A301) 1997 LaSalle National Bank Page 6 of 26
<PAGE>
ABN AMRO Statement Date: 04/15/97
LaSalle National Bank Payment Date: 04/15/97
Prior Payment: NA
Record Date: 03/31/97
Morgan Stanley Capital I Inc.
GMAC Commercial Mortgage Corporation, as Master and Special Servicer
Commercial Mortgage Pass-Through Certificates
Series 1997-C1
Administrator:
Linda Wirfel (800) 246-5761
135 S. LaSalle Street Suite 1740
Chicago, IL 60603
ABN AMRO Acct: 67-7721-20-1
Other Related Information
<TABLE>
<CAPTION>
===================================================================================================================================
Summary of REO Property:
- --------------------------------------------------------------------------------------------------------------
Principal Date of Final Amount Aggregate Other
Property Name Date of REO Balance Book Value Recovery of Proceeds Revenues Collected
- --------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
- --------------------------------------------------------------------------------------------------------------
Totals: 0.00 0.00 0.00 0.00
- --------------------------------------------------------------------------------------------------------------
-----------
Appraisal value of real estate acquired through foreclosure
or grant of a deed in lieu of foreclosure: 0.00
-----------
</TABLE>
Summary of Appraisal Reductions:
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------------------
Principal Appraisal Appraisal Date of
Property Name Loan Number Balance Reduction Amount Date Reduction
- --------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
- --------------------------------------------------------------------------------------------
Totals: 0.00 0.00
- --------------------------------------------------------------------------------------------
Summary of Class IO-1 Interest
Rate
Balance
Notional
Effective Notional*
Used to Calculate Current Interest
* The Effective Notional Amount will be used up to and including the Class
A-2 Crossover Date.
===================================================================================================================================
</TABLE>
04/11/97 - 16:20 (A287-A301) 1997 LaSalle National Bank Page 7 of 26
<PAGE>
ABN AMRO Statement Date: 04/15/97
LaSalle National Bank Payment Date: 04/15/97
Prior Payment: NA
Record Date: 03/31/97
Morgan Stanley Capital I Inc.
GMAC Commercial Mortgage Corporation, as Master and Special Servicer
Commercial Mortgage Pass-Through Certificates
Series 1997-C1
Administrator:
Linda Wirfel (800) 246-5761
135 S. LaSalle Street Suite 1740
Chicago, IL 60603
ABN AMRO Acct: 67-7721-20-1
Asset Backed Facts - Pool Total
<TABLE>
<CAPTION>
=====================================================================================================================
Distribution Delinq 1 Month Delinq 2 Months Delinq 3+ Months Foreclosure/ REO
Date Bankruptcy
-----------------------------------------------------------------------------------------------------
# Balance # Balance # Balance # Balance # Balance
=====================================================================================================================
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
4/15/97 0 0 0 0 0 0 0 0 0 0
0.00% 0.000% 0.00% 0.000% 0.00% 0.000% 0.00% 0.000% 0.00% 0.000%
- ---------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------
=====================================================================================================================
<CAPTION>
================================================================================
Modifications Prepayments Curr Weighted Avg.
- --------------------------------------------------------------------------------
# Balance # Balance Coupon Remit
================================================================================
<S> <C> <C> <C> <C> <C>
0 0 0 0 0.0000% 0.0000%
0.00% 0.000% 0.00% 0.000%
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
================================================================================
</TABLE>
Page 8 of 26
Note: Foreclosure and REO Totals are Included in the Appropriate
Delinquency Aging Category
04/11/97 - 16:20 (A287-A301) 1997 LaSalle National Bank
<PAGE>
ABN AMRO Statement Date: 04/15/97
LaSalle National Bank Payment Date: 04/15/97
Prior Payment: NA
Record Date: 03/31/97
Morgan Stanley Capital I Inc.
GMAC Commercial Mortgage Corporation, as Master and Special Servicer
Commercial Mortgage Pass-Through Certificates
Series 1997-C1
Administrator:
Linda Wirfel (800) 246-5761
135 S. LaSalle Street Suite 1740
Chicago, IL 60603
ABN AMRO Acct: 67-7721-20-1
Asset Backed Facts - Group 1 Total
<TABLE>
<CAPTION>
=====================================================================================================================
Distribution Delinq 1 Month Delinq 2 Months Delinq 3+ Months Foreclosure/ REO
Date Bankruptcy
-----------------------------------------------------------------------------------------------------
# Balance # Balance # Balance # Balance # Balance
=====================================================================================================================
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
4/15/97 0 0 0 0 0 0 0 0 0 0
0.00% 0.000% 0.00% 0.000% 0.00% 0.000% 0.00% 0.000% 0.00% 0.000%
- ---------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------
=====================================================================================================================
<CAPTION>
================================================================================
Modifications Prepayments Curr Weighted Avg.
- --------------------------------------------------------------------------------
# Balance # Balance Coupon Remit
================================================================================
<S> <C> <C> <C> <C> <C>
0 0 0 0 0.0000% 0.0000%
0.00% 0.000% 0.00% 0.000%
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
================================================================================
</TABLE>
Page 9 of 26
Note: Foreclosure and REO Totals are Included in the Appropriate
Delinquency Aging Category
04/11/97 - 16:20 (A287-A301) 1997 LaSalle National Bank
<PAGE>
ABN AMRO Statement Date: 04/15/97
LaSalle National Bank Payment Date: 04/15/97
Prior Payment: NA
Record Date: 03/31/97
Morgan Stanley Capital I Inc.
GMAC Commercial Mortgage Corporation, as Master and Special Servicer
Commercial Mortgage Pass-Through Certificates
Series 1997-C1
Administrator:
Linda Wirfel (800) 246-5761
135 S. LaSalle Street Suite 1740
Chicago, IL 60603
ABN AMRO Acct: 67-7721-20-1
Asset Backed Facts - Group 2 Total
<TABLE>
<CAPTION>
=====================================================================================================================
Distribution Delinq 1 Month Delinq 2 Months Delinq 3+ Months Foreclosure/ REO
Date Bankruptcy
-----------------------------------------------------------------------------------------------------
# Balance # Balance # Balance # Balance # Balance
=====================================================================================================================
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
4/15/97 0 0 0 0 0 0 0 0 0 0
0.00% 0.000% 0.00% 0.000% 0.00% 0.000% 0.00% 0.000% 0.00% 0.000%
- ---------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------
=====================================================================================================================
<CAPTION>
================================================================================
Modifications Prepayments Curr Weighted Avg.
- --------------------------------------------------------------------------------
# Balance # Balance Coupon Remit
================================================================================
<S> <C> <C> <C> <C> <C>
0 0 0 0 0.0000% 0.0000%
0.00% 0.000% 0.00% 0.000%
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
================================================================================
</TABLE>
Page 10 of 26
Note: Foreclosure and REO Totals are Included in the Appropriate
Delinquency Aging Category
04/11/97 - 16:20 (A287-A301) 1997 LaSalle National Bank
<PAGE>
ABN AMRO Statement Date: 04/15/97
LaSalle National Bank Payment Date: 04/15/97
Prior Payment: NA
Record Date: 03/31/97
Morgan Stanley Capital I Inc.
GMAC Commercial Mortgage Corporation, as Master and Special Servicer
Commercial Mortgage Pass-Through Certificates
Series 1997-C1
Administrator:
Linda Wirfel (800) 246-5761
135 S. LaSalle Street Suite 1740
Chicago, IL 60603
ABN AMRO Acct: 67-7721-20-1
Delinquent Loan Detail
<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 2. P&I Advance - Loan delinquent 2 months 4. Matured Balloon/Assumed Scheduled Payment
< one month delinq
============================================================================================================================
</TABLE>
** Outstanding P&I Advances include the current period P&I Advance
Page 11 of 26
04/11/97 - 16:20 (A287-A301) 1997 LaSalle National Bank
<PAGE>
<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>
Total 0.00 0.00 0.00
============================================================================================================================
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 2. P&I Advance - Loan delinquent 2 months 4. Matured Balloon/Assumed Scheduled Payment
one month delinquent
============================================================================================================================
</TABLE>
** Outstanding P&I Advances include the current period P&I Advance
Page 12 of 26
04/11/97 - 16:20 (A287-A301) 1997 LaSalle National Bank
<PAGE>
ABN AMRO Statement Date: 04/15/97
LaSalle National Bank Payment Date: 04/15/97
Prior Payment: NA
Record Date: 03/31/97
Morgan Stanley Capital I Inc.
GMAC Commercial Mortgage Corporation, as Master and Special Servicer
Commercial Mortgage Pass-Through Certificates
Series 1997-C1
ABN AMRO Acct: 67-7721-20-1
Pool Total
Administrator:
Linda Wirfel (800) 246-5761
135 S. LaSalle Street Suite 1740
Chicago, IL 60603
Distribution of Principal Balances
- --------------------------------------------------------------------------------
Current Scheduled Number Scheduled Based on
Balances of Loans Balance Balance
================================================================================
$0 to $250,000
$250,000 to $750,000
$750,000 to $1,250,000
$1,250,000 to $1,750,000
$1,750,000 to $2,250,000
$2,250,000 to $2,750,000
$2,750,000 to $3,250,000
$3,250,000 to $3,750,000
$3,750,000 to $4,750,000
$4,750,000 to $5,750,000
$5,750,000 to $6,750,000
$6,750,000 to $7,750,000
$7,750,000 to $8,750,000
$8,750,000 to $9,750,000
$9,750,000 to $10,750,000
$10,750,000 to $11,750,000
$11,750,000 to $12,750,000
$12,750,000 to $13,750,000
$13,750,000 to $14,750,000
$14,750,000 & Above
================================================================================
Total
================================================================================
W/Avg Mortgage Interest Rate is
Minimum Mortage Interest Rate is
Maximum Mortgage Interest Rate is
Distribution of Property Types
- --------------------------------------------------------------------------------
Number Scheduled Based on
Property Types of Loans Balance Balance
================================================================================
MF-Housing
Retail
Self Storage
Industrial
Nursing Home
Various
MH Park
Office
Congregate Care
Hospitality
Office/Retail
Other
================================================================================
Total
- --------------------------------------------------------------------------------
Distribution of Mortgage Interest Rates
- --------------------------------------------------------------------------------
Current Mortgage Number Scheduled Based on
Interest Rate of Loans Balance Balance
================================================================================
8.000% or less
8.000% 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% to 10.375%
10.375% to 10.625%
10.625% to 10.875%
10.875% to 11.125%
11.125% & Above
================================================================================
Total
- --------------------------------------------------------------------------------
W/Avg Mortgage Interest Rate is
Minimum Mortage Interest Rate is
Maximum Mortgage Interest Rate is
Geographic Distribution
- --------------------------------------------------------------------------------
Number Scheduled Based on
Geographic Location of Loans Balance Balance
================================================================================
California
New York
Texas
Arizona
Massachusetts
Michigan
Colorado
Georgia
New Jersey
Illinois
Virginia
Pennsylvania
Utah
Missouri
Minnesota
Maryland
Washington
Tennessee
South Carolina
Nevada
Indiana
South Dakota
Florida
Kentucky
New Mexico
Connecticut
North Carolina
Rhode Island
Mississippi
Alabama
Wyoming
================================================================================
Total
- --------------------------------------------------------------------------------
04/11/97 - 16:20 (A287-A301) (C)1997 LaSalle National Bank Page 13 of 26
<PAGE>
ABN AMRO Statement Date: 04/15/97
LaSalle National Bank Payment Date: 04/15/97
Prior Payment: NA
Record Date: 03/31/97
Morgan Stanley Capital I Inc.
GMAC Commercial Mortgage Corporation, as Master and Special Servicer
Commercial Mortgage Pass-Through Certificates
Series 1997-C1
ABN AMRO Acct: 67-7721-20-1
Pool Total
Administrator:
Linda Wirfel (800) 246-5761
135 S. LaSalle Street Suite 1740
Chicago, IL 60603
Loan Seasoning
- --------------------------------------------------------------------------------
Number Scheduled Based on
Number of Years of Loans Balance Balance
================================================================================
1 year or less
1+ to 2 years
2+ to 3 years
3+ to 4 years
4+ to 5 years
5+ to 6 years
6+ to 7 years
7+ to 8 years
8+ to 9 years
9+ to 10 years
10 years or more
================================================================================
Total
- --------------------------------------------------------------------------------
Weighted Average Seasoning is
Distribution of Remaining Term
Full Amortizing
- --------------------------------------------------------------------------------
Fully Amortizing Number 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
- --------------------------------------------------------------------------------
Weighted Average Months to Maturity is
Distribution of DSCR
- --------------------------------------------------------------------------------
Debt Service Number Scheduled Based on
Coverate Ratio (1) of Loans Balance Balance
================================================================================
0.500 to 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
- --------------------------------------------------------------------------------
Weighted Average Debt Service Coverage Ratio is
Distribution of Amortization Type
- --------------------------------------------------------------------------------
Number Scheduled Based on
Amortization Type of Loans Balance Balance
================================================================================
Fully Amortizing
Amortizing Ballon
================================================================================
Total
- --------------------------------------------------------------------------------
Distribution of Remaining Term
Ballon Loans
- --------------------------------------------------------------------------------
Balloon Number 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
- --------------------------------------------------------------------------------
Weighted Average Months to Maturity is
NOI Aging
- --------------------------------------------------------------------------------
Number Scheduled Based on
NOI Date of Loans Balance Balance
================================================================================
1 year or less
1 to 2 years
2 Years or More
Unknown
================================================================================
Total
- --------------------------------------------------------------------------------
(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.
04/11/97 - 16:20 (A287-A301) (C)1997 LaSalle National Bank Page 14 of 26
<PAGE>
ABN AMRO Statement Date: 04/15/97
LaSalle National Bank Payment Date: 04/15/97
Prior Payment: NA
Record Date: 03/31/97
Morgan Stanley Capital I Inc.
GMAC Commercial Mortgage Corporation, as Master and Special Servicer
Commercial Mortgage Pass-Through Certificates
Series 1997-C1
ABN AMRO Acct: 67-7721-20-1
Pool Total
Administrator:
Linda Wirfel (800) 246-5761
135 S. LaSalle Street Suite 1740
Chicago, IL 60603
Distribution of Maximum Rates
- --------------------------------------------------------------------------------
Number Scheduled Based on
Maximum Rates of Loans Balance Balance
================================================================================
================================================================================
Total
- --------------------------------------------------------------------------------
Weighted Average for Mtge with a Maximum Rate is
Distribution of Indices of Mortgage Loans
- --------------------------------------------------------------------------------
Number Scheduled Based on
Indices of Loans Balance Balance
================================================================================
================================================================================
Total
- --------------------------------------------------------------------------------
Distribution of Minimum Rates
- --------------------------------------------------------------------------------
Number Scheduled Based on
Minimum Rates (1) of Loans Balance Balance
================================================================================
================================================================================
Total
- --------------------------------------------------------------------------------
Distribution of Payment Adjustment
- --------------------------------------------------------------------------------
Interest Adjustment Number Scheduled Based on
Frequency of Loans Balance Balance
================================================================================
================================================================================
Total
- --------------------------------------------------------------------------------
Distribution of Mortgage Loan Margins
- --------------------------------------------------------------------------------
Number Scheduled Based on
Mortgage Loan Margins of Loans Balance Balance
================================================================================
================================================================================
Total
- --------------------------------------------------------------------------------
(1) For adjustable mortgage loans where a minimum rate does not exist the gross
margine was used.
Distribution of Interest Adjustment
- --------------------------------------------------------------------------------
Payment Adjustment Number Scheduled Based on
Frequency of Loans Balance Balance
================================================================================
================================================================================
Total
- --------------------------------------------------------------------------------
04/11/97 - 16:20 (A287-A301) (C)1997 LaSalle National Bank
Page 15 of 26
<PAGE>
ABN AMRO Statement Date: 04/15/97
LaSalle National Bank Payment Date: 04/15/97
Prior Payment: NA
Record Date: 03/31/97
Morgan Stanley Capital I Inc.
GMAC Commercial Mortgage Corporation, as Master and Special Servicer
Commercial Mortgage Pass-Through Certificates
Series 1997-C1
ABN AMRO Acct: 67-7721-20-1
Loan Goup 1
Administrator:
Linda Wirfel (800) 246-5761
135 S. LaSalle Street Suite 1740
Chicago, IL 60603
Distribution of Principal Balances
- --------------------------------------------------------------------------------
Current Scheduled Number Scheduled Based on
Balances of Loans Balance Balance
================================================================================
$0 to $250,000
$250,000 to $750,000
$750,000 to $1,250,000
$1,250,000 to $1,750,000
$1,750,000 to $2,250,000
$2,250,000 to $2,750,000
$2,750,000 to $3,250,000
$3,250,000 to $3,750,000
$3,750,000 to $4,750,000
$4,750,000 to $5,750,000
$5,750,000 to $6,750,000
$6,750,000 to $7,750,000
$7,750,000 to $8,750,000
$8,750,000 to $9,750,000
$9,750,000 to $10,750,000
$10,750,000 to $11,750,000
$11,750,000 to $12,750,000
$12,750,000 to $13,750,000
$13,750,000 to $14,750,000
$14,750,000 & Above
================================================================================
Total
- --------------------------------------------------------------------------------
Average Scheduled Balance is
Maximum Scheduled Balance is
Minimum Scheduled Balance is
Distribution of Property Types
- --------------------------------------------------------------------------------
Number Scheduled Based on
Property Types of Loans Balance Balance
================================================================================
MF-Housing
Retail
Self Storage
Industrial
Nursing Home
Various
MH Park
Office
Congregate Care
Hospitality
Office/Retail
Other
================================================================================
Total
- --------------------------------------------------------------------------------
Distribution of Mortgage Interest Rates
- --------------------------------------------------------------------------------
Current Mortgage Number Scheduled Based on
Interest Rate of Loans Balance Balance
================================================================================
8.000% or less
8.000% 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% to 10.375%
10.375% to 10.625%
10.625% to 10.875%
10.875% to 11.125%
11.125% & Above
================================================================================
Total
- --------------------------------------------------------------------------------
W/Avg Mortgage Interest Rate is
Minimum Mortgage Interest Rate is
Maximum Mortgage Interest Rate is
Geographic Distribution
- --------------------------------------------------------------------------------
Number Scheduled Based on
Geographic Location of Loans Balance Balance
================================================================================
California
New York
Texas
Arizona
Massachusetts
Michigan
Colorado
Georgia
New Jersey
Illinois
Virginia
Pennsylvania
Utah
Missouri
Minnesota
Maryland
Washington
Tennessee
South Carolina
Nevada
Indiana
South Dakota
Florida
Kentucky
New Mexico
Connecticut
North Carolina
Rhode Island
Mississippi
Alabama
Wyoming
================================================================================
Total
- --------------------------------------------------------------------------------
04/11/97 - 16:20 (A287-A301) (C)1997 LaSalle National Bank Page 16 of 26
<PAGE>
ABN AMRO Statement Date: 04/15/97
LaSalle National Bank Payment Date: 04/15/97
Prior Payment: NA
Record Date: 03/31/97
Morgan Stanley Capital I Inc.
GMAC Commercial Mortgage Corporation, as Master and Special Servicer
Commercial Mortgage Pass-Through Certificates
Series 1997-C1
ABN AMRO Acct: 67-7721-20-1
Loan Goup 1
Administrator:
Linda Wirfel (800) 246-5761
135 S. LaSalle Street Suite 1740
Chicago, IL 60603
Loan Seasoning
- --------------------------------------------------------------------------------
Number Scheduled Based on
Number of Years of Loans Balance Balance
================================================================================
1 year or less
1+ to 2 years
2+ to 3 years
3+ to 4 years
4+ to 5 years
5+ to 6 years
6+ to 7 years
7+ to 8 years
8+ to 9 years
9+ to 10 years
10 years or more
================================================================================
Total
- --------------------------------------------------------------------------------
Weighted Average Seasoning is
Distribution of Remaining Term
Full Amortizing
- --------------------------------------------------------------------------------
Fully Amortizing Number 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
- --------------------------------------------------------------------------------
Weighted Average Months to Maturity is
Distribution of DSCR
- --------------------------------------------------------------------------------
Debt Service Number Scheduled Based on
Coverate Ratio (1) of Loans Balance Balance
================================================================================
0.500 to 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
- --------------------------------------------------------------------------------
Weighted Average Debt Service Coverage Ratio is
Distribution of Amortization Type
- --------------------------------------------------------------------------------
Number Scheduled Based on
Amortization Type of Loans Balance Balance
================================================================================
Fully Amortizing
Amortizing Ballon
================================================================================
Total
- --------------------------------------------------------------------------------
Distribution of Remaining Term
Ballon Loans
- --------------------------------------------------------------------------------
Balloon Number 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
- --------------------------------------------------------------------------------
Weighted Average Months to Maturity is 115
NOI Aging
- --------------------------------------------------------------------------------
Number Scheduled Based on
NOI Date of Loans Balance Balance
================================================================================
1 year or less
1 to 2 years
2 Years or More
Unknown
================================================================================
Total
- --------------------------------------------------------------------------------
(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.
04/11/97 - 16:20 (A287-A301) (C)1997 LaSalle National Bank Page 17 of 26
<PAGE>
ABN AMRO Statement Date: 04/15/97
LaSalle National Bank Payment Date: 04/15/97
Prior Payment: NA
Record Date: 03/31/97
Morgan Stanley Capital I Inc.
GMAC Commercial Mortgage Corporation, as Master and Special Servicer
Commercial Mortgage Pass-Through Certificates
Series 1997-C1
ABN AMRO Acct: 67-7721-20-1
Loan Group 2
Administrator:
Linda Wirfel (800) 246-5761
135 S. LaSalle Street Suite 1740
Chicago, IL 60603
Distribution of Principal Balances
- --------------------------------------------------------------------------------
Current Scheduled Number Scheduled Based on
Balances of Loans Balance Balance
================================================================================
$0 to $250,000
$250,000 to $750,000
$750,000 to $1,250,000
$1,250,000 to $1,750,000
$1,750,000 to $2,250,000
$2,250,000 to $2,750,000
$2,750,000 to $3,250,000
$3,250,000 to $3,750,000
$3,750,000 to $4,750,000
$4,750,000 to $5,750,000
$5,750,000 to $6,750,000
$6,750,000 to $7,750,000
$7,750,000 to $8,750,000
$8,750,000 to $9,750,000
$9,750,000 to $10,750,000
$10,750,000 to $11,750,000
$11,750,000 to $12,750,000
$12,750,000 to $13,750,000
$13,750,000 to $14,750,000
$14,750,000 & Above
================================================================================
Total
================================================================================
W/Avg Mortgage Interest Rate is
Minimum Mortgage Interest Rate is
Maximum Mortgage Interest Rate is
Distribution of Property Types
- --------------------------------------------------------------------------------
Number Scheduled Based on
Property Types of Loans Balance Balance
================================================================================
MF-Housing
Retail
Self Storage
Industrial
Nursing Home
Various
MH Park
Office
Congregate Care
Hospitality
Office/Retail
Other
================================================================================
Total
- --------------------------------------------------------------------------------
Distribution of Mortgage Interest Rates
- --------------------------------------------------------------------------------
Current Mortgage Number Scheduled Based on
Interest Rate of Loans Balance Balance
================================================================================
8.000% or less
8.000% 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% to 10.375%
10.375% to 10.625%
10.625% to 10.875%
10.875% to 11.125%
11.125% & Above
================================================================================
Total
- --------------------------------------------------------------------------------
W/Avg Mortgage Interest Rate is
Minimum Mortgage Interest Rate is
Maximum Mortgage Interest Rate is
Geographic Distribution
- --------------------------------------------------------------------------------
Number Scheduled Based on
Geographic Location of Loans Balance Balance
================================================================================
California
New York
Texas
Arizona
Massachusetts
Michigan
Colorado
Georgia
New Jersey
Illinois
Virginia
Pennsylvania
Utah
Missouri
Minnesota
Maryland
Washington
Tennessee
South Carolina
Nevada
Indiana
South Dakota
Florida
Kentucky
New Mexico
Connecticut
North Carolina
Rhode Island
Mississippi
Alabama
Wyoming
================================================================================
Total
- --------------------------------------------------------------------------------
04/11/97 - 16:20 (A287-A301) (C)1997 LaSalle National Bank Page 18 of 26
<PAGE>
ABN AMRO Statement Date: 04/15/97
LaSalle National Bank Payment Date: 04/15/97
Prior Payment: NA
Record Date: 03/31/97
Morgan Stanley Capital I Inc.
GMAC Commercial Mortgage Corporation, as Master and Special Service
Commercial Mortgage Pass-Through Certificates
Series 1997-C1
ABN AMRO Acct: 67-7721-20-1
Loan Group 2
Administrator:
Linda Wirfel (800) 246-5761
135 S. LaSalle Street Suite 1740
Chicago, IL 60603
Loan Seasoning
- --------------------------------------------------------------------------------
Number Scheduled Based on
Number of Years of Loans Balance Balance
================================================================================
1 year or less
1+ to 2 years
2+ to 3 years
3+ to 4 years
4+ to 5 years
5+ to 6 years
6+ to 7 years
7+ to 8 years
8+ to 9 years
9+ to 10 years
10 years or more
================================================================================
Total
- --------------------------------------------------------------------------------
Weighted Average Seasoning is
Distribution of Remaining Term
Full Amortizing
- --------------------------------------------------------------------------------
Fully Amortizing Number 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
- --------------------------------------------------------------------------------
Weighted Average Months to Maturity is
Distribution of DSCR
- --------------------------------------------------------------------------------
Debt Service Number Scheduled Based on
Coverate Ratio (1) of Loans Balance Balance
================================================================================
0.500 to 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
- --------------------------------------------------------------------------------
Weighted Average Debt Service Coverage Ratio is
Distribution of Amortization Type
- --------------------------------------------------------------------------------
Number Scheduled Based on
Amortization Type of Loans Balance Balance
================================================================================
Fully Amortizing
Amortizing Ballon
================================================================================
Total
- --------------------------------------------------------------------------------
Distribution of Remaining Term
Ballon Loans
- --------------------------------------------------------------------------------
Balloon Number 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
- --------------------------------------------------------------------------------
Weighted Average Months to Maturity is 86
NOI Aging
- --------------------------------------------------------------------------------
Number Scheduled Based on
NOI Date of Loans Balance Balance
================================================================================
1 year or less
1 to 2 years
2 Years or More
Unknown
================================================================================
Total
- --------------------------------------------------------------------------------
(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.
04/11/97 - 16:20 (A287-A301) (C)1997 LaSalle National Bank Page 19 of 26
<PAGE>
ABN AMRO Statement Date: 04/15/97
LaSalle National Bank Payment Date: 04/15/97
Prior Payment: NA
Record Date: 03/31/97
Morgan Stanley Capital I Inc.
GMAC Commercial Mortgage Corporation, as Master and Special Servicer
Commercial Mortgage Pass-Through Certificates
Series 1997-C1
ABN AMRO Acct: 67-7721-20-1
Loan Group 2
Administrator:
Linda Wirfel (800) 246-5761
135 S. LaSalle Street Suite 1740
Chicago, IL 60603
Distribution of Maximum Rates
- --------------------------------------------------------------------------------
Number Scheduled Based on
Maximum Rates of Loans Balance Balance
================================================================================
================================================================================
Total
- --------------------------------------------------------------------------------
Weighted Average for Mtge with a Maximum Rate is
Distribution of Indices of Mortgage Loans
- --------------------------------------------------------------------------------
Number Scheduled Based on
Indices of Loans Balance Balance
================================================================================
================================================================================
Total
- --------------------------------------------------------------------------------
Distribution of Minimum Rates
- --------------------------------------------------------------------------------
Number Scheduled Based on
Minimum Rates (1) of Loans Balance Balance
================================================================================
================================================================================
Total
- --------------------------------------------------------------------------------
Distribution of Payment Adjustment
- --------------------------------------------------------------------------------
Interest Adjustment Number Scheduled Based on
Frequency of Loans Balance Balance
================================================================================
================================================================================
Total
- --------------------------------------------------------------------------------
Distribution of Mortgage Loan Margins
- --------------------------------------------------------------------------------
Number Scheduled Based on
Mortgage Loan Margins of Loans Balance Balance
================================================================================
================================================================================
Total
- --------------------------------------------------------------------------------
(1) For adjustable mortgage loans where a minimum rate does not exist the gross
margine was used.
Distribution of Interest Adjustment
- --------------------------------------------------------------------------------
Payment Adjustment Number Scheduled Based on
Frequency of Loans Balance Balance
================================================================================
================================================================================
Total
- --------------------------------------------------------------------------------
04/11/97 - 16:20 (A287-A301) (C)1997 LaSalle National Bank Page 20 of 26
<PAGE>
ABN AMRO Statement Date: 04/15/97
LaSalle National Bank Payment Date: 04/15/97
Prior Payment: NA
Record Date: 03/31/97
Morgan Stanley Capital I Inc.
GMAC Commercial Mortgage Corporation, as Master and Special Servicer
Commercial Mortgage Pass-Through Certificates
Series 1997-C1
ABN AMRO Acct: 67-7721-20-1
Administrator:
Linda Wirfel (800) 246-5761
135 S. LaSalle Street Suite 1740
Chicago, IL 60603
<TABLE>
<CAPTION>
Loan Level Detail
====================================================================================================================================
Property Operating Ending Loan
Disclosure Type Maturity Statement Principal Note Schedule Prepayment Status
Control # Group 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>
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
====================================================================================================================================
* 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.
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) Legend:
A. P&1 Adv - in Grace Period
B. P&1 Adv - less than on month deliquent
1. P&1 Adv - delinquent 1 month
2. P&1 Adv - delinquent 2 months
3. P&1 Adv - delinquent 3+ months
4. Mat. Balloon/Assumed P&1
5. Prepaid in Full
6. Specially Serviced
7. Foreclosure
8. Bankruptcy
9. REO
10. DPO
11. Modification
================================================================================
04/11/97 - 16:20 (A287-A301) (C)1997 LaSalle National Bank Page 21 of 26
<PAGE>
ABN AMRO Statement Date: 04/15/97
LaSalle National Bank Payment Date: 04/15/97
Prior Payment: NA
Record Date: 03/31/97
Morgan Stanley Capital I Inc.
GMAC Commercial Mortgage Corporation, as Master and Special Servicer
Commercial Mortgage Pass-Through Certificates
Series 1997-C1
ABN AMRO Acct: 67-7721-20-1
Administrator:
Linda Wirfel (800) 246-5761
135 S. LaSalle Street Suite 1740
Chicago, IL 60603
<TABLE>
<CAPTION>
Loan Level Detail
====================================================================================================================================
Property Operating Ending Loan
Disclosure Type Maturity Statement Principal Note Schedule Prepayment Status
Control # Group 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>
30
31
32
33
34
35
36
37
38
39
40
41
42
43
44
45
46
47
48
49
50
51
52
53
54
55
56
57
58
====================================================================================================================================
* 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.
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) Legend:
A. P&1 Adv - in Grace Period
B. P&1 Adv - less than one month deliquent
1. P&1 Adv - delinquent 1 month
2. P&1 Adv - delinquent 2 months
3. P&1 Adv - delinquent 3+ months
4. Mat. Balloon/Assumed P&1
5. Prepaid in Full
6. Specially Serviced
7. Foreclosure
8. Bankruptcy
9. REO
10. DPO
11. Modification
================================================================================
04/11/97 - 16:20 (A287-A301) (C)1997 LaSalle National Bank Page 22 of 26
<PAGE>
ABN AMRO Statement Date: 04/15/97
LaSalle National Bank Payment Date: 04/15/97
Prior Payment: NA
Record Date: 03/31/97
Morgan Stanley Capital I Inc.
GMAC Commercial Mortgage Corporation, as Master and Special Servicer
Commercial Mortgage Pass-Through Certificates
Series 1997-C1
ABN AMRO Acct: 67-7721-20-1
Administrator:
Linda Wirfel (800) 246-5761
135 S. LaSalle Street Suite 1740
Chicago, IL 60603
<TABLE>
<CAPTION>
Loan Level Detail
====================================================================================================================================
Property Operating Ending Loan
Disclosure Type Maturity Statement Principal Note Schedule Prepayment Status
Control # Group 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>
59
60
61
62
63
64
65
66
67
68
69
70
71
72
73
74
75
76
77
78
79
80
81
82
83
84
85
86
87
====================================================================================================================================
* 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.
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) Legend:
A. P&1 Adv - in Grace Period
B. P&1 Adv - less than one month delinquent
1. P&1 Adv - delinquent 1 month
2. P&1 Adv - delinquent 2 months
3. P&1 Adv - delinquent 3+ months
4. Mat. Balloon/Assumed P&1
5. Prepaid in Full
6. Specially Serviced
7. Foreclosure
8. Bankruptcy
9. REO
10. DPO
11. Modification
================================================================================
04/11/97 - 16:20 (A287-A301) (C)1997 LaSalle National Bank Page 23 of 26
<PAGE>
ABN AMRO Statement Date: 04/15/97
LaSalle National Bank Payment Date: 04/15/97
Prior Payment: NA
Record Date: 03/31/97
Morgan Stanley Capital I Inc.
GMAC Commercial Mortgage Corporation, as Master and Special Servicer
Commercial Mortgage Pass-Through Certificates
Series 1997-C1
ABN AMRO Acct: 67-7721-20-1
Administrator:
Linda Wirfel (800) 246-5761
135 S. LaSalle Street Suite 1740
Chicago, IL 60603
<TABLE>
<CAPTION>
Loan Level Detail
====================================================================================================================================
Property Operating Ending Loan
Disclosure Type Maturity Statement Principal Note Schedule Prepayment Status
Control # Group 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>
88
89
90
91
92
93
94
95
96
97
98
99
100
101
102
103
104
105
106
107
108
109
110
111
112
113
114
115
116
====================================================================================================================================
* 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.
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) Legend:
A. P&1 Adv - in Grace Period
B. P&1 Adv - less than one month delinquent
1. P&1 Adv - delinquent 1 month
2. P&1 Adv - delinquent 2 months
3. P&1 Adv - delinquent 3+ months
4. Mat. Balloon/Assumed P&1
5. Prepaid in Full
6. Specially Serviced
7. Foreclosure
8. Bankruptcy
9. REO
10. DPO
11. Modification
================================================================================
04/11/97 - 16:20 (A287-A301) (C)1997 LaSalle National Bank Page 24 of 26
<PAGE>
ABN AMRO Statement Date: 04/15/97
LaSalle National Bank Payment Date: 04/15/97
Prior Payment: NA
Record Date: 03/31/97
Morgan Stanley Capital I Inc.
GMAC Commercial Mortgage Corporation, as Master and Special Servicer
Commercial Mortgage Pass-Through Certificates
Series 1997-C1
ABN AMRO Acct: 67-7721-20-1
Administrator:
Linda Wirfel (800) 246-5761
135 S. LaSalle Street Suite 1740
Chicago, IL 60603
<TABLE>
<CAPTION>
Loan Level Detail
====================================================================================================================================
Property Operating Ending Loan
Disclosure Type Maturity Statement Principal Note Schedule Prepayment Status
Control # Group 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>
117
118
119
120
121
122
123
124
125
126
127
128
129
130
131
132
133
134
135
136
137
138
139
140
141
142
143
144
145
====================================================================================================================================
* 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.
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) Legend:
A. P&1 Adv - in Grace Period
B. P&1 Adv - less than one month delinquent
1. P&1 Adv - delinquent 1 month
2. P&1 Adv - delinquent 2 months
3. P&1 Adv - delinquent 3+ months
4. Mat. Balloon/Assumed P&1
5. Prepaid in Full
6. Specially Serviced
7. Foreclosure
8. Bankruptcy
9. REO
10. DPO
11. Modification
================================================================================
04/11/97 - 16:20 (A287-A301) (C)1997 LaSalle National Bank Page 25 of 26
<PAGE>
ABN AMRO Statement Date: 04/15/97
LaSalle National Bank Payment Date: 04/15/97
Prior Payment: NA
Record Date: 03/31/97
Morgan Stanley Capital I Inc.
GMAC Commercial Mortgage Corporation, as Master and Special Servicer
Commercial Mortgage Pass-Through Certificates
Series 1997-C1
ABN AMRO Acct: 67-7721-20-1
Administrator:
Linda Wirfel (800) 246-5761
135 S. LaSalle Street Suite 1740
Chicago, IL 60603
<TABLE>
<CAPTION>
Loan Level Detail
====================================================================================================================================
Property Operating Ending Loan
Disclosure Type Maturity Statement Principal Note Schedule Prepayment Status
Control # Group 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>
146
147
148
149
150
151
152
153
154
155
156
157
158
159
160
====================================================================================================================================
* 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.
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) Legend:
A. P&1 Adv - in Grace Period
B. P&1 Adv - less than one month delinquent
1. P&1 Adv - delinquent 1 month
2. P&1 Adv - delinquent 2 month
3. P&1 Adv - delinquent 3+ months
4. Mat. Balloon/Assumed P&1
5. Prepaid in Full
6. Specially Serviced
7. Foreclosure
8. Bankruptcy
9. REO
10. DPO
11. Modification
================================================================================
04/11/97 - 16:20 (A287-A301) (C)1997 LaSalle National Bank Page 26 of 26
<PAGE>
ABN AMRO Statement Date: 04/15/97
LaSalle National Bank Payment Date: 04/15/97
Prior Payment: NA
Record Date: 03/31/97
Morgan Stanley Capital I Inc.
GMAC Commercial Mortgage Corporation, as Master and Special Servicer
Commercial Mortgage Pass-Through Certificates
Series 1997-C1
ABN AMRO Acct: 67-7721-20-1
Administrator:
Linda Wirfel (800) 246-5761
135 S. LaSalle Street Suite 1740
Chicago, IL 60603
Specially Serviced Loan Detail
================================================================================
Beginning Specially
Disclosure Scheduled Interest Maturity Property Serviced
Control # Balance Rate Date Type Status Code(1) Comments
================================================================================
================================================================================
(1) Legend:
1) Request for waiver of Prepayment Penalty
2) Payment default
3) Request for Loan Modification of Workout
4) Loan with Borrower Bankruptcy
5) Loan in Process of Foreclosure
6) Loan now REO Property
7) Loan Paid Off
8) Loans Returns to Master Servicer
================================================================================
04/11/97 - 16:20 (A287-A301)(C)1997 LaSalle National Bank Appendix A
<PAGE>
ABN AMRO Statement Date: 04/15/97
LaSalle National Bank Payment Date: 04/15/97
Prior Payment: NA
Record Date: 03/31/97
Morgan Stanley Capital I Inc.
GMAC Commercial Mortgage Corporation, as Master and Special Servicer
Commercial Mortgage Pass-Through Certificates
Series 1997-C1
ABN AMRO Acct: 67-7721-20-1
Administrator:
Linda Wirfel (800) 246-5761
135 S. LaSalle Street Suite 1740
Chicago, IL 60603
Modified Loan Detail
================================================================================
Disclosure Modification Modification
Control # Date Description
- --------------------------------------------------------------------------------
================================================================================
04/11/97 - 16:20 (A287-A301)(C)1997 LaSalle National Bank Appendix B
<PAGE>
ABN AMRO Statement Date: 04/15/97
LaSalle National Bank Payment Date: 04/15/97
Prior Payment: NA
Record Date: 03/31/97
Morgan Stanley Capital I Inc.
GMAC Commercial Mortgage Corporation, as Master and Special Servicer
Commercial Mortgage Pass-Through Certificates
Series 1997-C1
ABN AMRO Acct: 67-7721-20-1
Administrator:
Linda Wirfel (800) 246-5761
135 S. LaSalle Street Suite 1740
Chicago, IL 60603
<TABLE>
<CAPTION>
Realized Loss Detail
====================================================================================================================================
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
====================================================================================================================================
Appendix C
</TABLE>
* Aggregrate liquidation expenses also include outstanding P&I advances and
unpaid servicing fees, unpaid trustee fees, etc..
04/11/97 - 16:20 (A287-A301) (C)1997 LaSalle National Bank
<PAGE>
Statement Date:
Payment Date:
Prior Payment:
Record Date:
GMAC Commercial Mortgage Corporation as Master Servicer
GMAC Commercial Mortgage Corporation as Special Servicer
LaSalle National Bank as Trustee
Morgan Stanley Commercial Mortgage Pass-Through Certificates
Series 1997-C1
SPECIALLY SERVICED LOAN SUMMARY
================================================================================
Number of Loans as of the Closing Date
Principal Balance as of the Closing Date
Current Number of Loans
Current Outstanding Principal Balance
Current Number of Specially Serviced Loans
Current Outstanding Principal Balance of Specially Serviced Loans
Percent of Specially Serviced Loans (per Current Number of Loans)
Percent of Specially Loans (per Current Outstanding Principal Balance)
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
Current Current
Principal Principal
Current Balance as a % Balance as a %
Number of Initial Principal Principal of Specially of Total Pool
Specially Serviced Loan Status Loans Balance Balance Serviced Loans Balance
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
1) Request for waiver of Prepayment Penalty
2) Payment Default
3) Request for Loan Modification or Workout
4) Loans with Borrower Bankruptcy
5) Loan in Process of Foreclosure
6) Loans now REO Property
7) Loans paid off
8) Loans Returned to Master Servicer
- ------------------------------------------------------------------------------------------------------------------------------------
Total 0.00 0.00 0.00
====================================================================================================================================
</TABLE>
EXHIBIT F - 1
<PAGE>
<TABLE>
<CAPTION>
GMAC Commercial Mortgage Corporation as Master Servicer Statement Date:
GMAC Commercial Mortgage Corporation as Special Servicer Payment Date:
LaSalle National Bank as Trustee Prior Payment:
Morgan Stanley Commercial Mortgage Pass-Through Certificates Record Date:
Series 1997-C1
REALIZED LOSS DETAIL
====================================================================================================================================
Gross Net
Appraisal Proceeds Proceeds
Offering Value/ Sched as a % of Aggregate Net as a % of Current
Distribution Circular Appraisal Brokers Principal Gross Sched Liquidation Liquidation Sched Realized
Date Control # Date Estimate Balance Proceeds Principal Expenses* Proceeds 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 0.00
Cumulative 0.00 0.00 0.00 0.00 0.00 0.00
====================================================================================================================================
</TABLE>
* Aggregate liquidation expenses also include outstanding P&1 advances and
unpaid servicing fees, unpaid special servicing fees, unpaid trustee fees,
etc.
<PAGE>
Statement Date:
Payment Date:
Prior Payment:
Record Date:
GMAC Commercial Mortgage Corporation as Master Servicer
GMAC Commercial Mortgage Corporation as Special Servicer
LaSalle National Bank as Trustee
Morgan Stanley Commercial Mortgage Pass-Through Certificates
Series 1997-C1
MODIFIED LOAN DETAIL
================================================================================
Offering
Modification Circular Modification
Date Control # Description
- --------------------------------------------------------------------------------
================================================================================
EXHIBIT F - 2
<PAGE>
EXHIBIT G
- --------------------------------------------------------------------------------
OPERATING STATEMENT ANALYSIS
The primary purpose of applying the methodology detailed below is to arrive at a
servicer adjusted or underwritten cashflow ("UCF") to facilitate a meaningful
comparison of the property's current operating information to the underwriting
that appears in the Prospectus Supplement. The detail below attempts to
highlight certain categories requiring adjustment, but it is not meant to be
exhaustive and it is expected that the Master Servicer will use its discretion
in making the appropriate adjustments.
Property Summary
---------------------------------
Servicer
---------------------------------
Loan Number
---------------------------------
Mortgagor
---------------------------------
Name of Mortgage Property
---------------------------------
Street
---------------------------------
City, State, Zip
---------------------------------
--------------
Date of Rent Roll
--------------
Physical Occupancy Percentage
--------------
--------------
Date of Operating Statement
--------------
Number of Months
--------------
Period From - To
--------------
<TABLE>
<CAPTION>
Current Period Annualized $/unit Notes
-------------- ------------
<S> <C> <C> <C> <C>
Income*
-------------- ------------
Gross Potential From current rent roll or operating statement
-------------- ------------
Vacancy Greater of 5% or actual
-------------- ------------
Net Rents
-------------- ------------
Reimbursements From current operating statement or as calculated from expenses;
-------------- ------------ includes loss of rents insurance proceeds
Other Income From current operating statement; exclude interest income,
-------------- ------------ non-recurring extraordinary income and ensure percentage rents
Total Income are supported by tenant sales information.
============== ============
Operating Expenses*
-------------- ------------
Management Fee Same percentage assumption as in initial underwriting
-------------- ------------
Administration From current operating statement; exclude any legal or
consulting fees not pertaining to the operation of the property
-------------- ------------
Utilities From current operating statement
-------------- ------------
Maintenance & Repair From current operating statement; remove any capital expenses
-------------- ------------
Insurance From current operating statement
-------------- ------------
Real Estate Taxes From current operating statement; annual amount due excluding
delinquent taxes or credits from prior years
-------------- ------------
Ground Rent From current operating statement
-------------- ------------
Other Expenses From current operating statement
-------------- ------------
Total Operating
Expenses
============== ============
Net Operating Income
-------------- ------------
Replacement Reserves Same dollar per unit or percentage assumption from original
underwriting
-------------- ------------
Tenant Improvements Same dollar per unit assumption as original underwriting
and Leasing Commissions
-------------- ------------
Underwritable Cash Flow
============== ============
Debt Service for Period
-------------- ------------
Debt Service Coverage
Ratio (UCF/Debt Service)
============== ============
</TABLE>
*Analyze and footnote as appropriate any significant income or expense variances
<PAGE>
Schedule I
MSMC Loan Schedule
[The loan schedule is identical to the loan schedule included in Exhibit A
of the mortgage loan purchase agreement attached to this Form 8-K as Exhibit
99.1A.]
Schedule II
ContiTrade Loan Schedule
[The loan schedule is identical to the loan schedule included in Exhibit A
of the mortgage loan purchase agreement attached to this Form 8-K as Exhibit
99.1B.]
Schedule III
GMACCM Loan Schedule
[The loan schedule is identical to the loan schedule included in Exhibit A
of the mortgage loan purchase agreement attached to this Form 8-K as Exhibit
99.1C.]
Exhibit 99.1A
<PAGE>
MORTGAGE LOAN PURCHASE AGREEMENT
This Mortgage Loan Purchase Agreement (this "Agreement"), is dated and
effective as of March 20, 1997, between Morgan Stanley Mortgage Capital, Inc. as
seller (the "Seller") and Morgan Stanley Capital I Inc. as purchaser (the
"Purchaser").
The Seller desires to sell, assign, transfer and otherwise convey to the
Purchaser, and the Purchaser desires to purchase, subject to the terms and
conditions set forth below, the multifamily and commercial mortgage loans (the
"Mortgage Loans") identified on the schedule annexed hereto as Exhibit A (the
"Mortgage Loan Schedule").
It is expected that the Mortgage Loans will be transferred, together with
other multifamily and commercial mortgage loans (the "Other Loans") to a trust
fund (the "Trust Fund") to be formed by the Purchaser, beneficial ownership of
which will be evidenced by a series of mortgage pass-through certificates (the
"Certificates"). Certain classes of the Certificates will be rated by Duff &
Phelps Credit Rating Co. and/or Moody's Investors Service Inc. (together, the
"Rating Agencies"). Certain classes of the Certificates (the "Registered
Certificates") will be registered under the Securities Act of 1933, as amended
(the "Securities Act"). The Trust Fund will be created and the Certificates will
be issued pursuant to a pooling and servicing agreement to be dated as of March
1, 1997 (the "Pooling and Servicing Agreement"), among the Purchaser as
depositor, the GMAC Commercial Mortgage Corporation as master servicer (in such
capacity, the "Master Servicer") and as special servicer (in such capacity, the
"Special Servicer"), LaSalle National Bank as trustee (the "Trustee") and ABN
AMRO Bank N.V. as fiscal agent (the "Fiscal Agent"). Capitalized terms not
otherwise defined herein, including without limitation in the Exhibits hereto,
have the meanings assigned to them in the Pooling and Servicing Agreement.
The Purchaser intends to sell the Registered Certificates to Morgan Stanley
& Co. Incorporated (the "Underwriter") pursuant to an underwriting agreement
dated the date hereof (the "Underwriting Agreement"), among the Purchaser and
the Underwriter. The Purchaser intends to sell the remaining Certificates (the
"Non-Registered Certificates") to the Underwriter pursuant to a certificate
purchase agreement dated the date hereof (the "Certificate Purchase Agreement"),
between the Purchaser and the Underwriter.
Now, therefore, in consideration of the premises and the mutual agreements
set forth herein, the parties agree as follows:
SECTION 1. AGREEMENT TO PURCHASE.
The Seller agrees to sell, assign, transfer and otherwise convey to the
Purchaser, and the Purchaser agrees to purchase, the Mortgage Loans. The
purchase and sale of the Mortgage Loans shall take place on March 26, 1997 or
such other date as shall be mutually acceptable to the parties hereto (the
"Closing Date"). As of the close of business on March 1, 1997 (the "Cut-off
Date"), the Mortgage Loans will have an aggregate principal
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balance (the "Aggregate Cut-off Date Balance"), after application of all
payments of principal due thereon on or before such date, whether or not
received, of $196,785,974, subject to a variance of plus or minus 5.0%. The
purchase price (the "Aggregate Purchase Price") for the Mortgage Loans shall be
the dollar amount as set forth in that certain "Flow of Funds" dated as of March
20, 1997. The Aggregate Purchase Price shall be paid to the Seller by wire
transfer of immediately available funds.
SECTION 2. CONVEYANCE OF MORTGAGE LOANS; ASSIGNMENT OF RIGHTS UNDER
ADDITIONAL WARRANTY AGREEMENTS.
(a) Effective as of the Closing Date, subject only to receipt by the Seller
of the Aggregate Purchase Price for the Mortgage Loans referred to in Section 1
hereof, the Seller does hereby sell, transfer, assign, set over and otherwise
convey to the Purchaser, without recourse, all the right, title and interest of
the Seller in and to (i) the Mortgage Loans identified on the Mortgage Loan
Schedule as of such date, including all interest and principal received or
receivable by the Seller on or with respect to the Mortgage Loans after the
Cut-off Date, together with all of the Seller's right, title and interest in and
to the proceeds of any related title, hazard, or other insurance policies and
any escrow, reserve or other comparable accounts related to the Mortgage Loans,
(ii) Section 7 of the Mortgage Loan Purchase Agreement, dated as of October 29,
1996 (the "Heller Mortgage Loan Purchase Agreement"), between Heller Financial,
Inc. ("Heller") and the Seller and (iii) Section 4.3 of the Purchase and Interim
Servicing Agreement, dated as of October 24, 1996 (the "GAL Mortgage Loan
Purchase Agreement"; and, together with the Heller Mortgage Loan Purchase
Agreement, the "Additional Warranty Agreements"), between General American Life
Insurance Company ("GAL"; and, together with Heller, the "Additional Warranting
Parties") and the Seller. The Purchaser shall be entitled to (and, to the extent
received by or on behalf of the Seller, the Seller shall deliver or cause to be
delivered to or at the direction of the Purchaser or any subsequent owner of the
related Mortgage Loans, including without limitation the Trustee) all scheduled
payments of principal and interest due on the Mortgage Loans after the Cut-off
Date, and all other recoveries of principal and interest collected thereon after
the Cut-off Date. All scheduled payments of principal and interest due thereon
on or before the Cut-off Date and collected after the Cut-off Date shall belong
to the Seller.
(b) In connection with the Seller's assignment of the Mortgage Loans
identified on the Mortgage Loan Schedule as of the Closing Date pursuant to
subsection (a) above, the Seller shall on or before the Closing Date deliver to
and deposit with, or cause to be delivered to and deposited with, the Trustee
(with a copy to the Master Servicer) the Mortgage File (as described on Exhibit
B hereto) for each Mortgage Loan so assigned. If the Seller cannot so deliver,
or cause to be delivered, as to any Mortgage Loan, the original or a copy of any
of the documents and/or instruments referred to in clause (ii), (iv), (viii),
(xi)(A) or (xii) of Exhibit B, with (if appropriate) evidence of recording or
filing, as the case may be, thereon, solely because of a delay caused by the
public recording or filing office where such document or instrument has been
delivered for recordation or filing, the delivery requirements of this
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Section 2(b) shall be deemed to have been satisfied as to such missing item, and
such missing item shall be deemed to have been included in the related Mortgage
File, provided that the Seller has delivered to the Trustee on or before the
Closing Date a copy of such document or instrument (without evidence of
recording or filing thereon, but certified (which certificate may relate to
multiple documents and/or instruments) by the Seller to be a true and complete
copy of the original thereof submitted for recording or filing, as the case may
be), and the Seller shall deliver to or at the direction of the Purchaser (or
any subsequent owner of the affected Mortgage Loan, including without limitation
the Trustee), promptly following the receipt thereof, the original of such
missing document or instrument (or a copy thereof) with (if appropriate)
evidence of recording or filing, as the case may be, thereon. If the Seller
cannot so deliver, or cause to be delivered, as to any Mortgage Loan, the
original or a copy of the related lender's title insurance policy referred to in
clause (ix) of Exhibit B solely because such policy has not yet been issued, the
delivery requirements of this Section 2(b) shall be deemed to be satisfied as to
such missing item, and such missing item shall be deemed to have been included
in the related Mortgage File, provided that the Seller has delivered to the
Trustee on or before the Closing Date a commitment for title insurance
"marked-up" at the closing of such Mortgage Loan, and the Seller shall deliver
to or at the direction of the Purchaser (or any subsequent owner of the affected
Mortgage Loan, including without limitation the Trustee), promptly following the
receipt thereof, the original related lender's title insurance policy (or a copy
thereof). In addition, notwithstanding anything to the contrary contained
herein, if there exists with respect to any group of related
cross-collateralized Mortgage Loans only one original of any document referred
to in Exhibit B covering all the Mortgage Loans in such group, then the
inclusion of the original of such document in the Mortgage File for any of the
Mortgage Loans in such group shall be deemed an inclusion of such original in
the Mortgage File for each such Mortgage Loan.
(c) As to each Mortgage Loan, the Seller shall be responsible for all costs
associated with the recording or filing, as the case may be, of each assignment
referred to in clauses (iii) and (v) of Exhibit B and each UCC-2 and UCC-3, if
any, referred to in clause (xi)(B) of Exhibit B; provided that the Seller shall
not be responsible for actually recording or filing any such document or
instrument. If any such document or instrument is lost or returned unrecorded or
unfiled, as the case may be, because of a defect therein, the Seller shall
promptly prepare or cause the preparation of a substitute therefor or cure or
cause the curing of such defect, as the case may be, and shall thereafter
deliver the substitute or corrected document to or at the direction of the
Purchaser (or any subsequent owner of the affected Mortgage Loan, including
without limitation the Trustee) for recording or filing, as appropriate, at the
Seller's expense.
(d) All documents and records in the Seller's possession (or under its
control) relating to the Mortgage Loans that are not required to be a part of a
Mortgage File in accordance with Exhibit B (all such other documents and
records, as to any Mortgage Loan, the "Servicing File"), together with all
escrow payments, reserve funds and other comparable funds in the possession of
the Seller (or under its control) with respect to the Mortgage Loans,
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shall (unless they are held by a sub-servicer that will, as of the Closing Date,
act on behalf of the Master Servicer pursuant to a written agreement between
such parties) be delivered by the Seller (or its agent) to the Purchaser (or its
designee) no later than the Closing Date. If a sub-servicer will, as of the
Closing Date, act on behalf of the Master Servicer with respect to any Mortgage
Loan pursuant to a written agreement between such parties, the Seller shall
deliver a copy of the related Servicing File to the Master Servicer.
(e) The Seller's records will reflect the transfer of the Mortgage Loans to
the Purchaser as a sale.
SECTION 3. EXAMINATION OF MORTGAGE LOAN FILES AND DUE DILIGENCE REVIEW.
The Seller shall reasonably cooperate with any examination of the Mortgage
Files and Servicing Files and any other due diligence with respect to the
Mortgage Loans that may be undertaken by or on behalf of the Purchaser. The fact
that the Purchaser has conducted or has failed to conduct any partial or
complete examination of the Mortgage Files and/or Servicing Files or any other
due diligence with respect to the Mortgage Loans shall not affect the right of
the Purchaser or any of its successors and assigns (including without limitation
the Trustee) to pursue any remedy available in equity or at law for a breach of
the Seller's representations, warranties and covenants set forth in or
contemplated by Section 4.
SECTION 4. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE SELLER.
(a) The Seller hereby makes, as of the date hereof and as of the Closing
Date (or as of such other date specifically provided in the particular
representation or warranty), to and for the benefit of the Purchaser, and its
successors and assigns (including without limitation the Trustee and the holders
of the Certificates), each of the representations and warranties set forth in
Exhibit C, with such changes or modifications as may be permitted or required by
the Rating Agencies.
(b) In addition, the Seller, as of the date hereof and as of the Closing
Date, hereby represents and warrants to, and covenants with, the Purchaser that:
(i) The Seller is a corporation duly organized, validly existing and
in good standing under the laws of the State of Delaware. The Seller has
the requisite power and authority and legal right to own the Mortgage Loans
and to transfer and convey the Mortgage Loans to the Purchaser and has the
requisite power and authority and legal right to execute and deliver,
engage in the transactions contemplated by, and perform and observe the
terms and conditions of, this Agreement.
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(ii) This Agreement has been duly and validly authorized, executed and
delivered by the Seller, all requisite action by the Seller has been taken
in connection therewith, and (assuming the due authorization, execution and
delivery hereof by the Purchaser) this Agreement constitutes the valid,
legal and binding agreement of the Seller, enforceable against the Seller
in accordance with its terms, except as such enforcement may be limited by
(A) laws relating to bankruptcy, insolvency, reorganization, receivership
or moratorium, (B) other laws relating to or affecting the rights of
creditors generally, (C) general equity principles (regardless of whether
such enforcement is considered in a proceeding in equity or at law) or (D)
public policy considerations underlying the securities laws to the extent
that such public policy considerations limit the enforceability of the
provisions of this Agreement that purport to provide indemnification from
liabilities under applicable securities laws.
(iii) No consent, approval, authorization or order of, registration or
filing with, or notice to, any governmental authority or court, is
required, under federal or state law, for the execution, delivery and
performance of or compliance by the Seller with this Agreement, or the
consummation by the Seller of any transaction contemplated hereby, other
than (1) the filing or recording of financing statements, instruments of
assignment and other similar documents necessary in connection with
Seller's sale of the Mortgage Loans to the Purchaser, (2) such consents,
approvals, authorizations, qualifications, registrations, filings or
notices as have been obtained or made and (3) where the lack of such
consent, approval, authorization, qualification, registration, filing or
notice would not have a material adverse effect on the performance by the
Seller under this Agreement.
(iv) Neither the transfer of the Mortgage Loans to the Purchaser, nor
the execution, delivery or performance of this Agreement by the Seller,
conflicts or will conflict with, results or will result in a breach of, or
constitutes or will constitute a default under (A) any term or provision of
the certificate of incorporation or by-laws of the Seller, (B) any term or
provision of any material agreement, contract, instrument or indenture, to
which the Seller is a party or which may be applicable to the Seller or any
of its assets, or (C) any law, rule, regulation, order, judgment, writ,
injunction or decree of any court or governmental authority having
jurisdiction over the Seller or its assets.
(v) There are no actions or proceedings against, or investigations of,
the Seller pending or, to the Seller's knowledge, threatened against the
Seller before any court, administrative agency or other tribunal, the
outcome of which could reasonably be expected to adversely affect the
transfer of the Mortgage Loans to the Purchaser or the execution or
delivery by, or enforceability against, the Seller of this Agreement or to
have an effect on the financial condition of the Seller that would
materially and adversely affect the ability of the Seller to perform its
obligations under this Agreement.
(vi) No certificate, statement, report or other information furnished
in writing by the Seller to the Purchaser, any affiliate of the Purchaser
or a Rating Agency for
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use in connection with the purchase of the Mortgage Loans and the
transactions contemplated hereunder contains any untrue statement of a
material fact or omits to state a material fact necessary to make the
certificate, statement, report or other information not misleading.
(vii) The Seller has not dealt with any broker, investment banker,
agent or other person, except for the Purchaser, the Underwriter or any of
their respective affiliates, that may be entitled to any commission or
compensation in connection with the sale of the Mortgage Loans or the
consummation of any of the other transactions contemplated hereby.
(viii) The transfer of the Mortgage Loans to the Purchaser on the
Closing Date will be treated by the Seller for financial accounting and
reporting purposes as a sale of assets.
(ix) The transfer, assignment and conveyance of the Mortgage Loans by
the Seller pursuant to this Agreement are not subject to the bulk transfer
or any similar statutory provisions in effect in any relevant jurisdiction,
except such as may have been complied with.
(x) Insofar as it relates to the Mortgage Loans, the related Mortgaged
Properties and/or the related Mortgagors, the information set forth on the
Master Tape (as defined in Section 9) is true and correct in all material
respects.
(xi) The Seller's Information (as defined in Section 9 below) does not
contain any untrue statement of material fact or omit to state a material
fact necessary to make the statements therein, in the light of
circumstances under which they were made, not misleading.
(xii) The Seller does not believe, nor does it have any reason to
believe, that it cannot perform in all material respects each and every
covenant on its part in this Agreement.
(c) Upon discovery by any of the parties hereto of a breach of any of the
representations and warranties made pursuant to and set forth in subsection (b)
above which materially and adversely affects the interests of the Purchaser or a
breach of any of the representations and warranties made pursuant to subsection
(a) above and set forth in Exhibit C which materially and adversely affects the
value of any Mortgage Loan or the interests therein of the Purchaser or its
successors and assigns (including without limitation the Trustee and the holders
of the Certificates), the party discovering such breach shall give prompt
written notice to the other party hereto.
SECTION 5. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE PURCHASER.
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<PAGE>
(a) The Purchaser, as of the date hereof and as of the Closing Date, hereby
represents and warrants to, and covenants with, the Seller that:
(i) The Purchaser is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware.
(ii) The Purchaser has full power and authority to acquire the
Mortgage Loans, to execute and deliver this Agreement and to enter into and
consummate all transactions contemplated by this Agreement. The Purchaser
has duly authorized the execution, delivery and performance of this
Agreement and has duly executed and delivered this Agreement. This
Agreement, assuming due authorization, execution and delivery by the
Seller, constitutes the valid and binding obligation of the Purchaser,
enforceable against the Purchaser in accordance with its terms, except as
such enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium and other similar laws affecting the enforcement
of creditors' rights generally and by general principles of equity,
regardless of whether such enforcement is considered in a proceeding in
equity or at law.
(iii) No consent, approval, authorization or order of, registration or
filing with, or notice to, any governmental authority or court, is
required, under federal or state law, for the execution, delivery and
performance of or compliance by the Purchaser with this Agreement, or the
consummation by the Purchaser of any transaction contemplated hereby, which
has not been obtained or made by the Purchaser.
(iv) The execution, delivery and performance of this Agreement by the
Purchaser will not violate the Purchaser's articles of incorporation or
by-laws or constitute a default under, or result in a breach of, any
material agreement or instrument to which the Purchaser is a party or which
may be applicable to the Purchaser or its assets.
(v) The Purchaser 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, rule,
writ, injunction, or any order or decree of any court, or any order or
regulation of any federal, state or municipal government agency having
jurisdiction over the Purchaser or its assets, which violation could
materially and adversely affect the condition (financial or otherwise) or
the operation of the Purchaser or its assets or could materially and
adversely affect its ability to perform its obligations and duties
hereunder.
(vi) There are no actions or proceedings against, or investigations
of, the Purchaser pending or, to the Purchaser's knowledge, threatened
against the Purchaser before any court, administrative agency or other
tribunal, the outcome of which could reasonably be expected to adversely
affect the transfer of the Mortgage Loans, the issuance of the
Certificates, or the execution, delivery or enforceability of this
Agreement or to have an effect on the financial condition of the Purchaser
that would materially and adversely affect the ability of the Purchaser to
perform its obligation under this Agreement.
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(vii) The Purchaser has not dealt with any broker, investment banker,
agent or other person, except for the Seller, the Underwriter or any of
their respective affiliates, that may be entitled to any commission or
compensation in connection with the sale of the Mortgage Loans or the
consummation of any of the other transactions contemplated hereby.
(viii) The Purchaser does not believe, nor does it have any reason to
believe, that it cannot perform in all material respects each and every
covenant on its part in this Agreement.
(b) Upon discovery by any of the parties hereto of a breach of any of the
representations and warranties set forth above which materially and adversely
affects the interests of the Seller, the party discovering such breach shall
give prompt written notice to the other party hereto.
SECTION 6. REMEDIES FOR BREACH OF REPRESENTATION
(a) The Seller acknowledges that the Purchaser will make for the benefit of
the holders of the Certificates, whether directly or by way of assignment of its
rights hereunder to the Trustee, the representations and warranties set forth on
Exhibit C hereto.
(b) If any document required to be delivered to the Trustee pursuant to
Section 2 is not delivered as and when required, is not properly executed, is
missing, contains information that does not conform in any respect to the
corresponding information in the Mortgage Loan Schedule or does not appear
regular on its face (any such omission, nonconformity or other defect, a
"Document Defect"), or if there is a breach of any of the representations and
warranties required to be made by the Seller regarding the characteristics of
the Mortgage Loans and/or the related Mortgaged Properties as set forth in
Exhibit C hereto, and in either case such Document Defect or breach materially
and adversely affects the interests of the holders of the Certificates (a
"Material Document Defect" and a "Material Breach", respectively), the party
discovering such Material Document Defect or Material Breach shall (or is
required by the terms of the Pooling and Servicing Agreement to) promptly notify
the other parties, and the Seller shall be required to cure such Material
Document Defect or Material Breach in all material respects within the
applicable Permitted Cure Period (as defined below); provided, however, that
notwithstanding the foregoing and as to each Mortgage Loan that is identified on
Exhibit A as having been acquired by the Seller from Heller or GAL (i) the
Seller represents and warrants that Heller or GAL, as applicable, has made to
the Seller the representations and warranties with respect to such Mortgage Loan
set forth on Exhibit E or Exhibit F, as applicable, and that such
representations and warranties and associated rights are assignable to the
Purchaser, and (ii) the Seller shall have no liability to the Purchaser or its
assigns for any breach or inaccuracy of any representation or warranty set forth
in this Exhibit C if the circumstances or event which gives rise to such breach
or inaccuracy also results in or constitutes a breach or inaccuracy of any
representation or
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warranty made to the Seller by Heller or GAL, as applicable; provided, further,
however, that the Seller shall cooperate as reasonably requested by the
Purchaser in connection with any effort of the Purchaser to pursue remedies as a
result of a breach, or alleged breach, of any representation or warranty made to
the Seller by Heller or GAL, as applicable. If any Material Document Defect or
Material Breach cannot be corrected or cured in all material respects within the
applicable Permitted Cure Period, the Seller subject to the proviso in the
preceding sentence shall, not later than the last day of such Permitted Cure
Period, (i) repurchase the affected Mortgage Loan from the Purchaser or its
assignee at the applicable Purchase Price (as defined in the Pooling and
Servicing Agreement), or (ii) if within the three-month period commencing on the
Closing Date (or within the two-year period commencing on the Closing Date if
the related Mortgage Loan is a "defective obligation" within the meaning of
Section 860(a)(4)(B) (ii) of the Internal Revenue Code of 1986 (the "Code") and
Treasury Regulation Section 1.860G-2(f), at its option, replace such Mortgage
Loan with a Qualifying Substitute Mortgage Loan (as defined in the Pooling and
Servicing Agreement) and pay any corresponding Substitution Shortfall Amount
(also as defined in the Pooling and Servicing Agreement). The Seller agrees that
any such repurchase or substitution by it shall be completed in accordance with
and subject to the terms and conditions of the Pooling and Servicing Agreement.
For purposes of the foregoing, and subject to the following paragraph, the
"Permitted Cure Period" applicable to any Material Document Defect or Material
Breach in respect of any Mortgage Loan shall be the 90-day period immediately
following the earlier of the discovery by the Seller or receipt by the Seller of
notice of such Material Document Defect or Material Breach, as the case may be;
provided that if such Material Document Defect or Material Breach, as the case
may be, cannot be corrected or cured in all material respects within such 90-day
period, but it is reasonably likely that such Material Document Defect or
Material Breach, as the case may be, could be corrected or cured within 180 days
of the earlier of discovery by the Seller and receipt by the Seller of notice of
such Material Document Defect or Material Breach, as the case may be, and the
Seller is diligently attempting to effect such correction or cure, then the
applicable Permitted Cure Period shall, with the consent of the Purchaser or its
assignee (which consent shall not be unreasonably withheld), be extended for an
additional 90 days.
Notwithstanding the preceding provisions of this Section 6(b), if any
Material Document Defect or Material Breach would cause any Mortgage Loan to be
other than a "qualified mortgage" within the meaning of Section 860G(a)(3) of
the Code, then any cure of such Material Document Defect or Material Breach, as
the case may be, as contemplated above must be completed within 90 days of the
Closing Date, and any repurchase or substitution of such Mortgage Loan as
contemplated above must occur within 90 days of the initial discovery of such
Material Document Defect or Material Breach, as the case may be, by any of the
Seller, the Purchaser, the Trustee, the Master Servicer, the Special Servicer or
the Fiscal Agent.
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The obligations of the Seller set forth in this Section 6(b) to cure a
Material Document Defect or a Material Breach or repurchase or replace the
related Mortgage Loan constitute the sole remedies of the Purchaser or its
assignees with respect to a Material Document Defect or Material Breach;
provided, that this limitation shall not in any way limit the Purchaser's rights
or remedies upon breach of any other representation, warranty or covenant by the
Seller set forth in this Agreement (other than those set forth in Exhibit C).
(c) The Pooling and Servicing Agreement shall provide that the Trustee (or
the Master Servicer or the Special Servicer on its behalf) shall give prompt
notice to the Seller of its discovery of any Material Document Defect or
Material Breach.
(d) If the Seller repurchases or replaces any Mortgage Loan pursuant to
this Section 6, the Purchaser or its assignee, following receipt by the Trustee
of the Purchase Price therefor (or, in the case of a substitution, following
receipt by the Trustee of the Mortgage File for the Qualifying Substitute
Mortgage Loan and any corresponding Substitution Shortfall Amount), promptly
shall deliver or cause to be delivered to the Seller all Mortgage Loan documents
with respect to the Mortgage Loan that is being repurchased or replaced, and
each document that constitutes a part of the Mortgage File that was endorsed or
assigned to the Trustee shall be endorsed and assigned to the Seller in the same
manner.
SECTION 7. CLOSING.
The closing of the sale of the Mortgage Loans (the "Closing") shall be held
at the offices of Sidley & Austin, 875 Third Avenue, New York, New York 10022 at
10:00 a.m., New York City time, on the Closing Date.
The Closing shall be subject to each of the following conditions:
(i) All of the representations and warranties of the Seller specified
herein shall be true and correct as of the Closing Date, and the
Aggregate Cut-off Date Balance shall be within the range permitted by
Section 1 of this Agreement;
(ii) All documents specified in Section 8 of this Agreement (the "Closing
Documents"), in such forms as are agreed upon and acceptable to the
Purchaser, shall be duly executed and delivered by all signatories as
required pursuant to the respective terms thereof;
(iii) The Seller shall have delivered and released to the Trustee the
Purchaser or the Purchaser's designee, as the case may be, all
documents and funds required to be so delivered pursuant to Section 2
hereof;
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(iv) The result of any examination of the Mortgage Files and Servicing
Files performed by or on behalf of the Purchaser pursuant to Section
3 hereof shall be satisfactory to the Purchaser in its sole
determination;
(v) All other terms and conditions of this Agreement required to be
complied with by the Seller on or before the Closing Date shall have
been complied with, and the Seller shall have the ability to comply
with all terms and conditions and perform all duties and obligations
required to be complied with or performed after the Closing Date;
(vi) The Seller shall have paid or agreed to pay all fees, costs and
expenses payable by it to the Purchaser pursuant to this Agreement;
and
(vii) Neither the Underwriting Agreement nor the Certificate Purchase
Agreement shall have been terminated in accordance with its terms.
Both parties agree to use their best efforts to perform their respective
obligations hereunder in a manner that will enable the Purchaser to purchase the
Mortgage Loans on the Closing Date.
SECTION 8. CLOSING DOCUMENTS.
The Closing Documents shall consist of the following:
(i) This Agreement duly executed and delivered by the Purchaser and the
Seller;
(ii) An Officer's Certificate substantially in the form of Exhibit D-1
hereto, executed by the Secretary or an assistant secretary of the
Seller, and dated the Closing Date, and upon which the Purchaser and
the Underwriter may rely, attaching thereto as exhibits the
organizational documents of the Seller;
(iii) A certificate of good standing regarding the Seller from the
Secretary of State for the State of Delaware, dated not earlier than
30 days prior to the Closing Date;
(iv) A certificate of the Seller substantially in the form of Exhibit D-2
hereto, executed by an executive officer or authorized signatory of
the Seller and dated the Closing Date, and upon which the Purchaser
and the Underwriter may rely;
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(v) A written opinion of counsel for the Seller, substantially in the
form of Exhibit D-3 hereto and subject to such reasonable
assumptions and qualifications as may be requested by counsel for
the Seller and acceptable to counsel for the Purchaser, dated the
Closing Date and addressed to the Purchaser and the Underwriter;
(vi) Any other opinions of counsel for the Seller required by the Rating
Agencies in connection with the issuance of the Certificates, each
of which shall include the Purchaser and the Underwriter as an
addressee; and
(vii) A letter or letters from Deloitte & Touche, L.L.P., certified public
accountants, dated the dates of the Prospectus Supplement and the
Memorandum (each as defined in Section 9), to the effect that they
have performed certain specified procedures as a result of which
they have determined that certain information of an accounting,
financial or statistical nature set forth in the Prospectus
Supplement and the Memorandum under the captions "Summary--The
Mortgage Pool," "Description of the Mortgage Pool" and "Risk Factors
--The Mortgage Loans" agrees with the records of the Seller; and
(viii) Such further certificates, opinions and documents as the Purchaser
may reasonably request.
SECTION 9. INDEMNIFICATION.
(a) The Seller shall indemnify and hold harmless the Purchaser, its
respective officers and directors, and each person, if any, who controls the
Purchaser within the meaning of either Section 15 of the Securities Act or
Section 20 of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), against any and all losses, claims, damages or liabilities (including
without limitation the reasonable costs of investigation and legal defense),
joint or several, to which they or any of them may become subject under the
Securities Act, the Exchange Act or other federal or state statutory law or
regulation, at common law or otherwise (including without limitation as a result
of the Purchaser's indemnification of the Underwriter), insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) (i) arise out of
or are based upon any untrue statement or alleged untrue statement of a material
fact contained in (A) the Prospectus (including without limitation the diskette
delivered therewith), the Memorandum (including without limitation the diskette
delivered therewith), any Computational Materials or ABS Term Sheets with
respect to the Registered Certificates, or any revision or amendment of any of
the foregoing or supplement to any of the foregoing, (B) any items similar to
Computational Materials and ABS Term Sheets forwarded to prospective investors
in the Non-Registered Certificates, or (C) any other summaries, reports,
documents and written and electronic materials and all other information
furnished or
- 13 -
<PAGE>
made available by the Seller for review by prospective investors in the
Certificates, or (ii) arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading; but only if and to the extent that any
such untrue statement or alleged untrue statement or omission or alleged
omission is with respect to, or results from an untrue statement or omission
with respect to, information regarding the Mortgage Loans, the related
Mortgagors, the related Mortgaged Properties or the Seller, that is contained in
the Master Tape or in any of the items described in clauses (i) (A), (i) (B)
and/or (i) (C) above (any and all such information, the "Seller's Information");
provided that the indemnification provided by this Section 9 shall not apply to
the extent that such untrue statement or omission was made solely as a result of
an error in the manipulation of, or in any calculations based upon, any true and
accurate loan-by-loan statistical information regarding the Mortgage Loans or
was made solely as a result of an error in aggregating any true and accurate
statistical information regarding the Mortgage Loans with any statistical
information regarding the Other Loans. It is hereby acknowledged and agreed that
the Seller's Information includes, but is not limited to, all such information
set forth in Appendix I and Appendix II to the Prospectus Supplement and set
forth in the Prospectus Supplement and the Memorandum under the headings
"Summary -- The Mortgage Pool", "Risk Factors -- The Mortgage Loans" and
"Description of the Mortgage Pool" and, to the extent based upon the
characteristics of the Mortgage Loans, under the headings "Maturity
Considerations" and "Yield Considerations." This indemnity agreement will be in
addition to any liability which the Seller may otherwise have.
For purposes of the foregoing, "Prospectus" shall mean the prospectus dated
March 20, as supplemented by the prospectus supplement dated March 20, 1997 (the
"Prospectus Supplement"), relating to the Registered Certificates; "Memorandum"
shall mean the private placement memorandum dated March 20, 1997, relating to
the Non-Registered Certificates; "Computational Materials" shall have the
meaning assigned thereto in the no-action letter dated May 20, 1994 issued by
the Division of Corporation Finance of the Securities and Exchange Commission
(the "Commission") to Kidder, Peabody Acceptance Corporation I, Kidder, Peabody
& Co. Incorporated, and Kidder Structured Asset Corporation and the no-action
letter dated May 27, 1994 issued by the Division of Corporation Finance of the
Commission to the Public Securities Association (together, the "Kidder
Letters"); "ABS Term Sheets" shall have the meaning assigned thereto in the
no-action letter dated February 17, 1995 issued by the Division of Corporation
Finance of the Commission to the Public Securities Association (the "PSA Letter"
and, together with the Kidder Letters, the "No-Action Letters"); and "Master
Tape" shall mean the portion, regarding the Mortgage Loans, the related
Mortgagors and the related Mortgaged Properties, of the compilation of
information and data regarding the Mortgage Loans and the Other Loans covered by
the Agreed Upon Procedures Letters dated March 20, 1997 and rendered by Deloitte
& Touche, L.L.P. (a "hard copy" of which Master Tape was initialed on behalf of
the Seller and the Purchaser).
- 14 -
<PAGE>
(b) In case any proceeding (including any governmental investigation) shall
be instituted involving any person that may seek indemnity pursuant to Section 9
(a) above, such person (the "indemnified party") shall notify the Seller as the
person against whom such indemnity may be sought (the "indemnifying party") in
writing and the indemnifying party, upon request of the indemnified party, shall
retain counsel reasonably satisfactory to the indemnified party to represent the
indemnified party in such proceeding and shall pay the reasonable fees and
disbursements of such counsel related to such proceeding. The indemnifying party
may, at its option, at any time upon written notice to the indemnified party,
assume the defense of any proceeding and may designate counsel satisfactory to
the indemnified party in connection therewith provided that the counsel so
designated would have no actual or potential conflict of interest in connection
with such representation. In any such proceeding, any indemnified party shall
have the right to retain its own counsel, but the reasonable fees and expenses
of such counsel shall be at the expense of such indemnified party unless (i) the
indemnifying party and the indemnified party shall have mutually agreed to the
retention of such counsel, (ii) the named parties to any such proceeding
(including any impleaded parties) include both the indemnifying party and the
indemnified party and representation of both parties by the same counsel would
be inappropriate due to actual or potential differing interests between them or
(iii) the indemnifying party shall have failed to designate within a reasonable
period of time counsel reasonably satisfactory to the indemnified party. It is
understood that the indemnifying party shall not, in connection with any
proceeding or related proceedings in the same jurisdiction, be liable for the
reasonable fees and expenses of more than one separate firm (in addition to any
local counsel) for all such indemnified parties. Unless it shall assume the
defense of any proceeding, the indemnifying party shall not be liable for any
settlement of any proceeding effected without its written consent (which consent
shall not be unreasonably withheld), but if settled with such consent or if
there shall be a final judgment for the plaintiff, the indemnifying party agrees
to indemnify the indemnified party from and against any loss or liability by
reason of such settlement or judgment. If the indemnifying party assumes the
defense of any proceeding, it shall be entitled to settle such proceeding with
the consent of the indemnified party or, if such settlement provides for release
of the indemnified party in connection with all matters relating to the
proceeding which have been asserted against the indemnified party in such
proceeding by the other parties to such settlement, without the consent of the
indemnified party.
(c) If the indemnification provided for in this Section 9 is unavailable or
insufficient to hold harmless an indemnified party in respect of any losses,
claims, damages, liabilities or expenses (or actions in respect thereof)
referred to herein, then the indemnifying party, in lieu of indemnifying such
indemnified party, shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages, liabilities or
expenses (or actions in respect thereof) (i) in such proportion as is
appropriate to reflect the relative benefits received by the Seller on the one
hand and the Purchaser and the Underwriter on the other from the sale of the
Mortgage Loans and the offering of the Certificates (to the extent such are
backed by the Mortgage Loans) or (ii) if the allocation provided by clause (i)
is not permitted by applicable law, in such proportion as is appropriate to
reflect not only such
- 15 -
<PAGE>
relative benefits referred to in clause (i) but also the relative fault of the
Seller on the one hand and the Purchaser and the Underwriter on the other in
connection with the statements or omissions that resulted in such losses,
claims, damages, liabilities or expenses (or actions in respect thereof), as
well as any other relevant equitable considerations. The relative benefits of
the Purchaser and the Underwriter on the one hand and the Seller on the other
shall be deemed to be in such proportion as the (i) total proceeds from the sale
of the Mortgage Loans and the offering of the Certificates (before deducting
expenses) received by the Seller bear to (ii) the total underwriting discounts
and commissions received by the Underwriter from time to time in negotiated
sales of the Certificates (to the extent the Certificates are backed by the
Mortgage Loans). The relative fault of the Seller on the one hand and of the
Purchaser and the Underwriter on the other shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact relates to
information supplied by the Seller or by the Purchaser or the Underwriter, and
the parties' relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission.
(d) The parties hereto agree that it would not be just and equitable if
contribution were determined by pro rata allocation or by any other method or
allocation that does not take account of the equitable considerations referred
to in subsection (c) above. The amount paid or payable by an indemnified party
as a result of the losses, claims, damages, liabilities or expenses (or actions
in respect thereof) referred to above shall be deemed to include any legal fees
and disbursements or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any such claim, except where
the indemnified party is required to bear such expenses, which expenses the
indemnifying party shall pay as and when incurred, at the request of the
indemnified party, to the extent that the indemnified party will ultimately be
obligated to pay such expenses. In the event that any expenses so paid by the
indemnifying party are subsequently determined to not be required to be borne by
the indemnifying party hereunder, the party which received such payment shall
promptly refund the amount so paid to the party which made such payment. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The remedies provided
for in this Section 9 are not exclusive and shall not limit any rights or
remedies that may otherwise be available to any indemnified party at law or in
equity.
(e) The indemnity and contribution agreements contained in this Section 9
shall remain operative and in full force and effect regardless of (i) any
termination of this Agreement, (ii) any investigation made by the Purchaser, any
of its directors or officers, or any person controlling the Purchaser, and (iii)
acceptances of and payment for any of the Mortgage Loans.
- 16 -
<PAGE>
SECTION 10. COSTS.
Costs relating to the transactions contemplated hereby shall be borne by
the parties hereto or their respective affiliates in accordance with the Letter
of Understanding.
SECTION 11. NOTICES.
All demands, notices and communications hereunder shall be in writing and
shall be deemed to have been duly given if personally delivered to or mailed, by
registered mail, postage prepaid, by overnight mail or courier service, or
transmitted by facsimile and confirmed by a similar mailed writing, if to the
Purchaser, addressed to Morgan Stanley Capital I Inc., 1585 Broadway, New York,
New York, Attention: Russell Rahbany, facsimile no. (212) 761-0524, with a copy
to Morgan Stanley Capital I Inc., 1585 Broadway, New York, New York, Attention:
Gregory Walker, Esq., facsimile no. (212) 761-8915, or such other address or
facsimile number as may hereafter be furnished to the Seller in writing by the
Purchaser; and if to the Seller, addressed to Morgan Stanley Mortgage Capital,
Inc., 1585 Broadway, New York, New York, Attention: Russell Rahbany, facsimile
no. (212) 761-0524, with a copy to Morgan Stanley Mortgage Capital, Inc., 1585
Broadway, New York, New York, Attention: Gregory Walker, Esq., facsimile no.
(212) 761-8915 or to such other address or facsimile number as the Seller may
designate in writing to the Purchaser.
SECTION 12. THIRD PARTY BENEFICIARIES.
Each of the officers, directors and controlling persons referred to in
Section 9 hereof is an intended third party beneficiary of the covenants and
indemnities of the Seller set forth in Section 9 of this Agreement. It is
acknowledged and agreed that such representations, warranties, covenants and
indemnities may be enforced by or on behalf of any such person or entity against
the Seller to the same extent as if it was a party hereto.
SECTION 13. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE DELIVERY.
All representations, warranties and agreements contained in this Agreement,
incorporated herein by reference or contained in the certificates of officers of
the Seller submitted pursuant hereto, shall remain operative and in full force
and effect and shall survive delivery of the Mortgage Loans by the Seller to the
Purchaser or its designee.
SECTION 14. SEVERABILITY OF PROVISIONS.
Any part, provision, representation, warranty or covenant of this Agreement
that is prohibited or which is held to be void or unenforceable shall be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof. Any part, provision,
representation, warranty or covenant of this Agreement that is prohibited
- 17 -
<PAGE>
or unenforceable or is held to be void or unenforceable in any particular
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
particular jurisdiction shall not invalidate or render unenforceable such
provision in any other jurisdiction. To the extent permitted by applicable law,
the parties hereto waive any provision of law which prohibits or renders void or
unenforceable any provision hereof.
SECTION 15. COUNTERPARTS.
This Agreement may be executed in any number of counterparts, each of which
shall be deemed to be an original, but all of which together shall constitute
one and the same instrument.
SECTION 16. GOVERNING LAW.
THIS AGREEMENT AND THE RIGHTS, DUTIES, OBLIGATIONS AND RESPONSIBILITIES OF
THE PARTIES HERETO SHALL BE GOVERNED IN ACCORDANCE WITH THE INTERNAL LAWS AND
DECISIONS OF THE STATE OF NEW YORK. THE PARTIES HERETO INTEND THAT THE
PROVISIONS OF SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW SHALL APPLY
TO THIS AGREEMENT.
SECTION 17. FURTHER ASSURANCES.
The Seller and the Purchaser agree to execute and deliver such instruments
and take such further actions as the other party may, from time to time,
reasonably request in order to effectuate the purposes and to carry out the
terms of this Agreement.
SECTION 18. SUCCESSORS AND ASSIGNS.
The rights and obligations of the Seller under this Agreement shall not be
assigned by the Seller without the prior written consent of the Purchaser,
except that any person into which the Seller may be merged or consolidated, or
any corporation or other entity resulting from any merger, conversion or
consolidation to which the Seller is a party, or any person succeeding to all or
substantially all of the business of the Seller, shall be the successor to the
Seller hereunder. The Purchaser has the right to assign its interest under this
Agreement, in whole or in part, as may be required to effect the purposes of the
Pooling and Servicing Agreement, and the assignee shall, to the extent of such
assignment, succeed to the rights and obligations hereunder of the Purchaser. In
addition, any person into which the Purchaser may be merged or consolidated, or
any corporation or other entity resulting from any merger, conversion or
consolidation to which the Purchaser is a party, or any person succeeding to all
or substantially all of the business of the Purchaser, shall be the successor to
- 18 -
<PAGE>
the Purchaser hereunder. Subject to the foregoing, this Agreement shall bind and
inure to the benefit of and be enforceable by the Seller and the Purchaser, and
their permitted successors and assigns, and the indemnified parties referred to
in Section 9.
SECTION 19. AMENDMENTS.
No term or provision of this Agreement may be amended, waived, modified or
in any way altered, unless such amendment, waiver, modification or alteration is
in writing and signed by a duly authorized officer of the party against whom
such amendment, waiver, modification or alteration is sought to be enforced.
SECTION 20. WAIVER OF TRIAL BY JURY.
THE PARTIES HERETO HEREBY WAIVE, TO THE FULLEST EXTENT PERMITTED BY LAW,
THE RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM, WHETHER IN
CONTRACT, TORT OR OTHERWISE, RELATING DIRECTLY OR INDIRECTLY TO THIS AGREEMENT
OR THE TRANSACTIONS CONTEMPLATED HEREBY.
[signatures on next page]
- 19 -
<PAGE>
IN WITNESS WHEREOF, the Seller and the Purchaser have caused their names to
be signed hereto by their respective duly authorized officers and/or
representatives as of the date first above written.
MORGAN STANLEY MORTGAGE CAPITAL, INC.
By: /s/ Russell A. Rahbany
--------------------------
Name: Russell A. Rahbany
Title: Vice President
MORGAN STANLEY CAPITAL I INC.
By: /s/ Russell A. Rahbany
--------------------------
Name: Russell A. Rahbany
Title: Vice President
- 20 -
<PAGE>
EXHIBIT A
Mortgage Loan Schedule
Morgan Stanley Mortgage Capital, Inc.
<TABLE>
<CAPTION>
Original Cut-off
ID Street Address City State Zip Code Balance Balance
====================================================================================================================================
<S> <C> <C> <C> <C> <C> <C>
13 Various Various MI Various $12,180,000 $12,017,061
13A 12840-12976 Farmington Road Livonia MI 48150
13B 31175-31209 Schoolcraft Road Livonia MI 48150
13C 32421-32499 Schoolcraft Road Livonia MI 48150
13D 27475-27603 Schoolcrafl Road Livonia MI 48150
13E 13150-13180 Wayne Road Livonia MI 48150
13F 32210-32250 Eight Mile Road Farmington Hills MI 48336
15 Various Boston MA Various 11,700,000 11,639,503
15A 66-70 Chiswick Street Boston MA 02146
15B 1626 -1638 Commonwealth Avenue Boston MA 02135
15C 1800 1820 Commonwealth Avenue Boston MA 02135
15D 2045 Commonwealth Avenue Boston MA 02135
27 Various Various TN Various 9,675,000 9,657,415
27A 962 Estate Road Memphis TN 38119
27B 3354 Perimeter Hill Drive Nashville TN 37221
27C 180 Market Place Boulevard Knoxville TN 37902
27D 9051 Executive Park Drive Knoxville TN 37922
27E 700 I1linois Avenue Oak Ridge TN 37830
29 2480 Middlefield Road Redwood City CA 94063 9,000,000 8,937,253
30 2501 West l65th Street Hammond IN 46320 8,750,000 8,693,111
34 NEC Broadway & Grant Street Santa Maria CA 90405 8,000,000 7,984,442
38 3700-3800 Broadway Quincy IL 62301 7,600,000 7,532,419
39 Various Various CA 90505 7,500,000 7,485,486
39A 2909-2967 Rolling Hills Road Torrance CA 90505
39B 19318-19424 Soledad Canyon Road Santa Clarita CA 90505
42 SWC Rainbow Blvd. & Alta Drive Las Vegas NV 89132 7,200,000 7,166,374
44 1111 West Mockingbird Lane Dallas TX 75247 7,050,000 7,050,000
47 29-00 Review Avenue Long Island City NY 11101 7,000,000 6,926,230
53 Various Denver CO Various 6,400,000 6,367,853
53A 1659 Wazee Street Denver CO 80802
53B 1612-1628 Seventeenth Street Denver CO 80802
59 39750-39830 Grand River Avenue Novi MI 48375 6,200,000 6,168,396
61 Various Various UT Various 5,600,000 5,589,560
61A 2300 East 3300 South Salt Lake City UT 84109
61B 2647 East Parley's Way Salt Lake City UT 84109
61C 1844 East 7000 South Salt Lake Cily UT 84121
61D 1580 South State St. Clearfield UT 84015
62 Stadium Blvd and Bernadette Dr. Columbia MO 65203 5,600,000 5,553,999
63 283 Route l7 South Hasbrouck Heights NJ 07604 5,600,000 5,509,630
65 9674 Northwest 10th Avenue Miami FL 33150 5,350,000 5,286,828
66 975 West Peachtree Street Atlanta GA 30309 5,300,000 5,267,899
67 1538 Floyd Baker Blvd Gaffney SC 29340 5,200,000 5,165,416
71 30400 Telegraph Road Bingham Farms MI 48879 4,707,661 4,707,661
72 11211 Vanowen Street North Hollywood CA 91605 4,700,000 4,674,215
73 3111-3229 State Highway 6 Sugar Land TX 77478 4,525,000 4,512,535
75 3635 S. Monaco Parkway Denver CO 80237 4,425,000 4,425,000
77 5061 Southern Avenue South Gate CA 90280 4,400,000 4,350,677
82 6624 Interstate Highway27 Lubbock TX 79404 3,900,000 3,874,248
<CAPTION>
Note Maturity Loan Rem. Loan Monthly Serv. Payment
Date Date Term Term. Type Rate P&I Fee Due Date
====================================================================================================================================
<S> <C> <C> <C> <C> <C> <C> <S> <C>
1/30/96 1/31/06 120 107 Fixed 8.39000% 97,175.43 13.6 First day of month
5/30/96 5/31/06 120 111 Fixed 8.90000% 93,300.22 13.6 First day of month
12/31/96 1/1/07 120 118 Fixed 8.91000% 80,596.80 13.6 First day of month
3/14/96 3/31/03 85 73 Fixed 8.90000% 71,769.40 13.6 First day of month
8/13/96 8/31/06 121 114 Fixed 8.89000% 72,771.70 13.6 First day of month
12/26/96 1/1/12 180 178 Fixed 8.50000% 64,418.17 13.6 First day of month
10/31/96 11/1/11 180 176 Fixed 8.50000% 70,550.20 13.6 First day of month
12/18/96 1/1/07 120 118 Fixed 8.53000% 60,543.73 13.6 First day of month
11/19/96 12/1/06 120 117 Fixed 8.75000% 63,627.17 13.6 First day of month
2/25/97 3/l/04 84 84 Fixed 9.23000% 57,896.47 13.6 First day of month
3/14/96 2/28/06 120 108 Fixed 9.35000% 60,430.47 13.6 First day of month
7/18/96 7/31/03 84 77 Fixed 10.44000% 60,153.58 13.6 First day of montb
5/30/96 5/31/06 120 111 Fixed 8.97000% 49,752.83 13.6 First day of month
11/20/96 12/1/03 84 81 Fixed 8.41000% 42,702.48 13.6 First day of month
9/30/96 10/1/16 240 235 Fixed 8.37500% 48,155.97 13.6 First day of month
3/29/96 4/30/06 121 110 Fixed 9.47000% 52,089.69 13.6 First day of month
2/28/96 2/28/06 120 108 Fixed 8.61000% 43,480.00 13.6 First day of month
10/10/96 11/1/06 120 116 Fixed 9.00000% 47,685.48 13.6 First day of month
10/31/96 11/1/06 120 116 Fixed 8.25000% 44,307.41 13.6 First day of month
12/23/94 6/1/11 198 171 Fixed 9.00000% 49,380.42 13.6 First day of month
12/18/96 1/1/12 180 178 Fixed 8.62500% 46,627.79 13.6 First day of month
11/26/96 12/1/06 120 117 Fixed 8.87000% 37,571.63 13.6 First day of month
2/20/97 3/1/07 120 120 Fixed 9.06000% 37,316.42 13.6 First day of month
3/8/96 2/28/06 120 108 Fixed 8.97000% 36,834.29 13.6 First day of month
6/7/96 6/30/06 121 112 Fixed 10.36000% 36,433.82 13.6 First day of month
</TABLE>
Page 1
<PAGE>
EXHIBIT A
Mortgage Loan Schedule
Morgan Stanley Mortgage Capital, Inc.
<TABLE>
<CAPTION>
Original Cut-off
ID Street Address City State Zip Code Balance Balance
====================================================================================================================================
<S> <C> <C> <C> <C> <C> <C>
83 7880 San Fernando Road Sun Valley CA 91352 3,900,000 3,867,979
85 Highway 21 Rincon GA 31326 3,468,750 3,444,957
86 181 Calle Del Oaks Del Rey Oaks CA 93940 3,475,000 3,439,021
88 1640 N. White Avenue La Verne CA 91750 3,350,000 3,322,497
90 115 W. Louden Avenue and 815 Newton Pike Lexington KY 40508 3,250,000 3,186,563
91 Sec Wesley Street & Loop 315 Greenville TX 75402 3,025,000 3,022,395
110 24985 Haggerty Road Novi MI 48375 2,530,000 2,514,131
113 5575 Armour Road Columbus GA 31909 2,400,000 2,384,526
125 4728 Fountain Avenue Hollywood CA 90029 1,850,000 1,835,325
129 SWC of Ladson Road and Bentons
Lodge Road Summerville SC 29485 1,730,000 1,726,652
134 132 0ld River Road Lincoln RI 02865 1,500,000 1,498,719
Total $196,785,974
<CAPTION>
Note Maturity Loan Rem. Loan Monthly Serv. Payment
Date Date Term Term. Rate Rate P&1 Fee Due Date
====================================================================================================================================
<S> <C> <C> <C> <C> <C> <C> <C> <C>
4/30/96 4/30/06 120 110 Fixed 9.71000% 34,645.20 13.6 First day of month
10/18/96 11/1/16 240 236 Fixed 8.00000% 29,014.02 13.6 First day of month
3/20/96 3/31/03 84 73 Fixed 8.90000% 28,924.48 13.6 First day of month
4/30/96 4/30/06 120 110 Fixed 9.71000% 29,759.34 13.6 First day of month
2/27/96 2/28/06 120 108 Fixed 8.66000% 28,534.23 13.6 First day of month
1/29/97 2/1/09 144 143 Fixed 9.21000% 25,822.11 13.6 First day of month
7/18/96 7/31/06 120 113 Fixed 9.11000% 21,422.57 13.6 First day of month
10/18/96 11/1/06 120 116 Fixed 8.50000% 20,827.76 13.6 First day of month
4/24/96 4/30/96 120 110 Fixed 9.92000% 16,706.75 13.6 First day of month
11/21/96 12/1/06 119 117 Fixed 8.53000% 13,965.42 13.6 First day of month
1/17/97 1/31/07 120 119 Fixed 9.26000% 12,856.08 18.6 First day of month
</TABLE>
Page 2
<PAGE>
EXHIBIT A
MORTGAGE LOAN SCHEDULE
The Mortgage Loan Schedule shall set forth, among other things, the
following information with respect to each Mortgage Loan:
(i) the loan number;
(ii) the street address (including city, state and zip code) of the
related Mortgaged Property;
(iii) the date of the Mortgage Note;
(iv) the Mortgage Rate in effect as of the Cut-off Date and whether such
Mortgage Loan has an adjustable Mortgage Rate;
(v) the original principal balance;
(vi) the Cut-off Date Balance;
(vii) the (A) remaining term to stated maturity and (B) Stated Maturity
Date; and
(viii) the Due Date;
(ix) the amount of the Monthly Payment due on the first Due Date
following the Cut-off Date (exclusive of any component thereof that
is contingent on net cash flow from the related Mortgaged Property);
(x if such Mortgage Loan has an adjustable Mortgage Rate, the (A)
Index, (B) Gross Margin, (C) first Mortgage Rate adjustment date
following the Cut-off Date and the frequency of Mortgage Rate
adjustments, (D) limitations, if any, on periodic adjustments to
Mortgage Rate, (E) maximum and minimum lifetime Mortgage Rate, if
any, (F) the first Monthly Payment adjustment date following the
Cut-off Date and the frequency of Monthly Payment adjustments; and
(xi) the Master Servicing Fee Rate.
The Mortgage Loan Schedule shall also set forth the Aggregate Cut-off Date
Balance for all of the Mortgage Loans. Such list may be in the form of more than
one list, collectively setting forth all of the information required.
A-1
<PAGE>
EXHIBIT B
THE MORTGAGE FILE
The "Mortgage File" for any Mortgage Loan shall, subject to Section 2(b),
collectively consist of the following documents:
(i) the original Mortgage Note, endorsed by the most recent endorsee
prior to the Trustee or, if none, by the originator, without
recourse, either in blank or to the order of the Trustee in the
following form: "Pay to the order of LaSalle National Bank, as
trustee for the registered holders of Morgan Stanley Capital I Inc.,
Commercial Mortgage Pass-Through Certificates, Series 1997 - C1,
without recourse";
(ii) the original or a copy of the related Mortgage and, if applicable,
the originals or copies of any intervening assignments of such
Mortgage showing a complete chain of assignment from the originator
of the Mortgage Loan to the most recent assignee of record thereof
prior to the Trustee, if any, in each case with evidence of
recording indicated thereon;
(iii) an original assignment of the related Mortgage, in recordable form,
executed by the most recent assignee of record thereof prior to the
Trustee or, if none, by the originator, either in blank or in favor
of the Trustee (in such capacity);
(iv) the original or a copy of the related Assignment of Leases (if such
item is a document separate from the Mortgage) and, if applicable,
the originals or copies of any intervening assignments of such
Assignment of Leases showing a complete chain of assignment from the
originator of the Mortgage Loan to the most recent assignee of
record thereof prior to the Trustee, if any, in each case with
evidence of recording thereon;
(v) an original assignment of any related Assignment of Leases (if such
item is a document separate from the Mortgage), in recordable form,
executed by the most recent assignee of record thereof prior to the
Trustee or, if none, by the originator, either in blank or in favor
of the Trustee (in such capacity), which assignment may be included
as part of the corresponding assignment of Mortgage referred to in
clause (iii) above;
(vi) an original or copy of any related security agreement (if such item
is a document separate from the Mortgage) and, if applicable, the
originals
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or copies of any intervening assignments of such security agreement
showing a complete chain of assignment from the originator of the
Mortgage Loan to the most recent assignee thereof prior to the
Trustee, if any;
(vii) an original assignment of any related security agreement (if such
item is a document separate from the Mortgage) executed by the most
recent assignee thereof prior to the Trustee or, if none, by the
originator, either in blank or in favor of the Trustee (in such
capacity), which assignment may be included as part of an omnibus
assignment covering other documents relating to the Mortgage Loan
provided that such an omnibus assignment would be effective under
applicable law;
(viii) originals or copies of all assumption, modification, written
assurance and substitution agreements, with evidence of recording
thereon (if appropriate), in those instances where the terms or
provisions of the Mortgage, Mortgage Note or any related security
document have been modified or the Mortgage Loan has been assumed;
(ix) the original or a copy of the lender's title insurance policy issued
in connection with the origination of the Mortgage Loan, together
with all endorsements or riders (or copies thereof) that were issued
with or subsequent to the issuance of such policy, insuring the
priority of the Mortgage as a first lien on the Mortgaged Property;
(x) the original or a copy of any guaranty of the obligations of the
Mortgagor under the Mortgage Loan, together with (A) if applicable,
the originals or copies of any intervening assignments of such
guaranty showing a complete chain of assignment from the originator
of the Mortgage Loan to the most recent assignee thereof prior to
the Trustee, if any, and (B) an original assignment of such guaranty
executed by the most recent assignee thereof prior to the Trustee
or, if none, by the originator (which assignment may be included as
part of an omnibus assignment covering other documents relating to
the Mortgage Loan provided that such an omnibus assignment would be
effective under applicable law);
(xi) (A) file or certified copies of any UCC financing statements and
continuation statements which were filed in order to perfect (and
maintain the perfection of) any security interest held by the
originator of the Mortgage Loan (and each assignee of record prior
to the Trustee) in and to the personalty of the mortgagor at the
Mortgaged Property (in each case with evidence of filing thereon)
and which were in the
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possession of the Seller (or its agent) at the time the Mortgage
Files were delivered to the Trustee and (B) if any such security
interest is perfected and the earlier UCC financing statements and
continuation statements were in the possession of the Seller, a UCC
financing statement executed by the most recent assignee of record
prior to the Trustee or, if none, by the originator, evidencing the
transfer of such security interest, either in blank or in favor of
the Trustee;
(xii) the original or a copy of the power of attorney (with evidence of
recording thereon, if appropriate) granted by the Mortgagor if the
Mortgage, Mortgage Note or other document or instrument referred to
above was signed on behalf of the Mortgagor; and
(xiii) if the Mortgagor has a leasehold interest in the related Mortgaged
Property, the original ground lease or a copy thereof;
provided that whenever the term "Mortgage File" is used to refer to documents
actually received by the Purchaser or the Trustee, such term shall not be deemed
to include such documents and instruments required to be included therein unless
they are actually so received.
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EXHIBIT C
REPRESENTATIONS AND WARRANTIES OF THE SELLER
REGARDING THE INDIVIDUAL MORTGAGE LOANS
With respect to each Mortgage Loan, the Seller hereby represents and
warrants, as of the date hereinbelow specified or, if no such date is specified,
as of the Closing Date, that:
(i) Ownership of Mortgage Loans. Immediately prior to the transfer thereof
to the Purchaser, the Seller had good and marketable title to, and was the sole
owner and holder of, such Mortgage Loan, free and clear of any and all liens,
encumbrances and other interests on, in or to such Mortgage Loan (other than, in
certain cases, the right of a subservicer to directly service such Mortgage
Loan). Such transfer validly assigns ownership of such Mortgage Loan to the
Purchaser free and clear of any pledge, lien, encumbrance or security interest.
(ii) Authority to Transfer Mortgage Loans. The Seller has full right and
authority to sell, assign and transfer such Mortgage Loan. No provision of the
Mortgage Note, Mortgage or other loan document relating to such Mortgage Loan
prohibits or restricts the Seller's right to assign or transfer such Mortgage
Loan.
(iii) Loan set forth in the Mortgage Loan Schedule was true and correct in
all material respects as of the Cut-off Date.
(iv) Payment Record. Such Mortgage Loan was not as of the Cut-off Date, and
has not been during the twelve-month period prior thereto, 30 days or more
delinquent in respect of any debt service payment required thereunder, without
giving effect to any applicable grace period.
(v) Lien Priority. The related Mortgage constitutes a valid first lien upon
the related Mortgaged Property, including all buildings located thereon and all
fixtures attached thereto, such lien being subject only to (A) the lien of
current real property taxes and assessments not yet due and payable, (B)
covenants, conditions and restrictions, rights of way, easements and other
matters of public record, (C) exceptions and exclusions specifically referred to
in the lender's title insurance policy issued or, as evidenced by a "marked-up"
commitment, to be issued in respect of such Mortgage Loan, and (D) other matters
to which like properties are commonly subject (the exceptions set forth in the
foregoing clauses (A), (B), (C) and (D) collectively, "Permitted Encumbrances").
The Permitted Encumbrances do not materially interfere with the security
intended to be provided by the related Mortgage, the current use or operation of
the related Mortgaged Property or the current ability of the Mortgaged Property
to generate net operating income sufficient to service the Mortgage Loan. Except
in the case of the Mortgage Loan secured by Park View Apartments (Mortgage Loan
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No. 113), if the Mortgaged Property is operated as a nursing facility, a
hospitality property or a multifamily property, the Mortgage, together with any
separate security agreement, similar agreement and UCC financing statement, if
any, establishes and creates a first priority, perfected security interest, to
the extent such security interest can be perfected by the recordation of a
Mortgage and the filing of a UCC financing statement, in all personal property
owned by the Mortgagor that is used in, and is reasonably necessary to, the
operation of the related Mortgaged Property. There exists with respect to such
Mortgaged Property an assignment of leases and rents provision, whether as part
of the related Mortgage or as a separate document or instrument, which
establishes and creates a first priority security interest in and to leases and
rents arising in respect of the related Mortgaged Property, subject only to
Permitted Encumbrances.
(vi) Title Insurance. The lien of the related Mortgage is insured by an
ALTA lender's title insurance policy ("Title Policy"), or its equivalent as
adopted in the applicable jurisdiction, issued by a nationally recognized title
insurance company, insuring the originator of such Mortgage Loan, its successors
and assigns, as to the first priority lien of the Mortgage in the original
principal amount of the Mortgage Loan after all advances of principal, subject
only to Permitted Encumbrances (or, if a title insurance policy has not yet been
issued in respect of the Mortgage Loan, a policy meeting the foregoing
description is evidenced by a commitment for title insurance "marked-up" at the
closing of such loan). Each Title Policy (or, if it has yet to be issued, the
coverage to be provided thereby) is in full force and effect, all premiums
thereon have been paid and, to the Seller's knowledge, no material claims have
been made thereunder and no claims have been paid thereunder. No holder of the
related Mortgage has done, by act or omission, anything that would materially
impair the coverage under such Title Policy. Immediately following the transfer
and assignment of the related Mortgage Loan to the Trustee, such Title Policy
(or, if it has yet to be issued, the coverage to be provided thereby) will inure
to the benefit of the Trustee without the consent of or notice to the insurer.
To the Seller's knowledge, the insurer that issued such Title Policy is
qualified to do business in the state in which the related Mortgaged Property is
located.
(vii) No Waivers by Seller of Material Defaults. The Seller has not waived
any material default, breach, violation or event of acceleration existing under
the related Mortgage or Mortgage Note.
(viii) No Offsets, Defenses or Counterclaims. There is no valid offset,
defense or counterclaim to such Mortgage Loan.
(ix) Condition of Property; Condemnation. Except as set forth in any
engineering report prepared in connection with the origination of (or obtained
in connection with or otherwise following the Seller's acquisition of) such
Mortgage Loan, the related Mortgaged Property is, to the Seller's knowledge,
free and clear of any damage that would materially and adversely affect its
value as security for such Mortgage Loan. The Seller has
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no actual notice of the commencement of a proceeding for the condemnation of all
or any material portion of the related Mortgaged Property.
(x) Compliance with Usury Laws. Such Mortgage Loan complied with all
applicable usury laws in effect at its date of origination.
(xi) Full Disbursement of Mortgage Loan Proceeds. The proceeds of such
Mortgage Loan have been fully disbursed and there is no requirement for future
advances thereunder.
(xii) Enforceability. The related Mortgage Note and Mortgage and all other
documents and instruments evidencing, guaranteeing, insuring or otherwise
securing such Mortgage Loan have been duly and properly executed by the parties
thereto, and each is the legal, valid and binding obligation of the maker
thereof (subject to any non-recourse provisions contained in any of the
foregoing agreements and any applicable state anti-deficiency legislation),
enforceable in accordance with its terms, except as such enforcement may be
limited by bankruptcy, insolvency, reorganization, receivership, moratorium or
other laws relating to or affecting the rights of creditors generally and by
general principles of equity (regardless of whether such enforcement is
considered in a proceeding in equity or at law).
(xiii) Insurance. All improvements upon the related Mortgaged Property are
insured against loss by hazards of extended coverage in an amount (subject to a
customary deductible) at least equal to the lesser of the outstanding principal
balance of such Mortgage Loan and 100% of the full insurable replacement cost of
the improvements located on such Mortgaged Property and the related hazard
insurance policy contains appropriate endorsements to avoid the application of
co-insurance and does not permit reduction in insurance proceeds for
depreciation. If any portion of the related Mortgaged Property was, at the time
of the origination of such Mortgage Loan, in an area identified in the Federal
Register by the Flood Emergency Management Agency as having special flood
hazards, and flood insurance was available, a flood insurance policy meeting any
requirements of the then current guidelines of the Federal Insurance
Administration is in effect with a generally acceptable insurance carrier, in an
amount representing coverage not less than the least of (1) the outstanding
principal balance of such Mortgage Loan, (2) the full insurable value of such
Mortgaged Property, (3) the maximum amount of insurance available under the
National Flood Insurance Act of 1968, as amended, and (4) 100% of the
replacement cost of the improvements located on such Mortgaged Property. In
addition, the Mortgage requires the Mortgagor to maintain in respect of the
Mortgaged Property comprehensive general liability insurance in amounts
generally required by commercial mortgage lenders, and at least six months
rental or business interruption insurance, and all such insurance required by
the Mortgage to be maintained is in full force and effect. Each such insurance
policy requires prior notice to the holder of the Mortgage of termination or
cancellation, and no such notice has been received, including any notice of
nonpayment of premiums, that has not been cured.
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(xiv) Environmental Condition. The related Mortgaged Property was subject
to one or more environmental site assessments (or an update of a previously
conducted assessment), which was (were) performed on behalf of the Seller, or as
to which the related report was delivered to the Seller in connection with its
origination or acquisition of such Mortgage Loan; and the Seller, having made no
independent inquiry other than reviewing the resulting report(s) and/or
employing an environmental consultant to perform the assessment(s) referenced
herein, has no knowledge of any material and adverse environmental conditions or
circumstance affecting such Mortgaged Property that was not disclosed in the
related report(s). The Seller has not taken any action with respect to such
Mortgage Loan or the related Mortgaged Property that could subject the
Purchaser, or its successors and assigns in respect of the Mortgage Loan, to any
liability under the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended ("CERCLA") or any other applicable federal,
state or local environmental law, and the Seller has not received any actual
notice of a material violation of CERCLA or any applicable federal, state or
local environmental law with respect to the related Mortgaged Property that was
not disclosed in the related report. The related Mortgage requires the Mortgagor
to comply with all applicable federal, state and local environmental laws and
regulations.
(xv) No Cross-Collateralization with Other Mortgage Loans. Such Mortgage
Loan is not cross-collateralized with any mortgage loan that will not be
included in the Trust Fund.
(xvi) Waivers and Modifications. The terms of the related Mortgage and the
Mortgage Note have not been impaired, waived, altered or modified in any
material respect, except as specifically set forth in the related Mortgage File.
(xvii) Taxes and Assessments. There are no delinquent taxes, ground rents,
water charges, sewer rents, assessments or other similar outstanding charges
affecting the related Mortgaged Property which are or may become a lien of
priority equal to or higher than the lien of the related Mortgage. For purposes
of this representation and warranty, real property taxes and assessments shall
not be considered unpaid until the date on which interest and/or penalties would
be payable thereon.
(xviii) Mortgagor's Interest in Mortgaged Property. Except in the case of
one Mortgage Loan (Mortgage Loan No. 91; Town South Shopping Center) as to which
the interest of the related Mortgagor in the related Mortgaged Property is in
whole or in part a leasehold estate, the interest of the related Mortgagor in
the related Mortgaged Property consists of a fee simple estate in real property.
(xix) Whole Loan. Each Mortgage Loan is a whole loan and not a
participation interest.
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(xx) Valid Assignment. The assignment of the related Mortgage referred to
in clause (iii) of Exhibit B constitutes the legal, valid and binding assignment
of such Mortgage from the relevant assignor to the assignee, and the assignment
of the related Assignment of Leases, if any, referred to in clause (v) of
Exhibit B constitutes the legal, valid and binding assignment thereof from the
relevant assignor to the Trustee.
(xxi) Escrows. All escrow deposits relating to such Mortgage Loan that are,
as of the Closing Date, required to be deposited with the mortgagee or its agent
have been so deposited.
(xxii) No Mechanics' or Materialmen's Liens. As of the date of origination
of such Mortgage Loan and, to the actual knowledge of the Seller, as of the
Closing Date, the related Mortgaged Property was and is free and clear of any
mechanics' and materialmen's liens or liens in the nature thereof which create a
lien prior to that created by the related Mortgage.
(xxiii) No Material Encroachments. To the Seller's knowledge (based on
surveys and/or title insurance obtained in connection with the origination of
such Mortgage Loan), as of the date of such origination, no improvement that was
included for the purpose of determining the appraised value of the related
Mortgaged Property at the time of origination of such Mortgage Loan lay outside
the boundaries and building restriction lines of such property to any material
extent (unless affirmatively covered by the title insurance referred to in
paragraph (vi) above), and no improvements on adjoining properties encroached
upon such Mortgaged Property to any material extent. To the Seller's knowledge,
based upon opinions of counsel and/or other due diligence customarily performed
by commercial mortgage lenders, the improvements located on or forming part of
such Mortgaged Property comply in all material respects with applicable zoning
laws and ordinances (except to the extent that they may constitute legal
non-conforming uses).
(xxiv) Originator Authorized. To the extent required under applicable law
as of the Closing Date, the originator of such Mortgage Loan was authorized to
do business in the jurisdiction in which the related Mortgaged Property is
located at all times when it held the Mortgage Loan to the extent necessary to
ensure the enforceability of such Mortgage Loan.
(xxv) No Material Default. To the Seller's knowledge, there exists (A) no
material default, breach or event of acceleration under the related Mortgage or
Mortgage Note, and (B) no event (other than payments due but not yet delinquent)
that, with the passage of time or with notice and the expiration of any grace or
cure period, would constitute such a material default, breach or event of
acceleration; provided, however, that this representation and warranty does not
cover any default, breach or event of acceleration that specifically pertains to
any matter otherwise covered or addressed by any other representation and
warranty made by the Seller therein.
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(xxvi) [Intentionally Omitted.]
(xxvii) No Equity Participation or Contingent Interest. The Mortgage Loan
contains no equity participation by the lender and does not provide for any
contingent or additional interest in the form of participation in the cash flow
of the related Mortgaged Property, or for negative amortization.
(xxviii) No Advances of Funds. No holder of the Mortgage Loan has, to the
Seller's knowledge, advanced funds or induced, solicited or knowingly received
any advance of funds from a party other than the owner of the related Mortgaged
Property, directly or indirectly, for the payment of any amount required by the
Mortgage Loan.
(xxix) Licenses, Permits, Etc. To the Seller's knowledge, based on due
diligence customarily performed in the origination of comparable mortgage loans
by the Seller, as of the date of origination of the Mortgage Loan, the related
Mortgagor was in possession of all material licenses, permits and authorizations
required by applicable laws for the ownership and operation of the related
Mortgaged Property as it was then operated.
(xxx) Servicing. The servicing and collection practices used with respect
to the Mortgage Loan have complied with applicable law in all material respects
and are consistent with those employed by prudent servicers of comparable
mortgage loans.
(xxxi) Customary Remedies. The related Mortgage or Mortgage Note, together
with applicable state law, contains customary and enforceable provisions
(subject to the exceptions set forth in paragraph (xii)) such as to render the
rights and remedies of the holders thereof adequate for the practical
realization against the related Mortgaged Property of the principal benefits of
the security intended to be provided thereby.
(xxxii) Insurance and Condemnation Proceeds. The related Mortgage provides
that insurance proceeds and condemnation proceeds will be applied either to
restore or repair the Mortgaged Property, or to repay the principal of the
Mortgage Loan or otherwise at the option of the holder of the Mortgage.
(xxxiii) LTV. The gross proceeds of each Mortgage Loan to the related
Mortgagor at origination did not exceed the non-contingent principal amount of
the Mortgage Loan and either: (A) such Mortgage Loan is secured by an interest
in real property having a fair market value (1) at the date the Mortgage Loan
was originated at least equal to 80 percent of the original principal balance of
the Mortgage Loan or (2) at the Closing Date at least equal to 80 percent of the
principal balance of the Mortgage Loan on such date; provided that for purposes
hereof, the fair market value of the real property interest must first be
reduced by (X) the amount of any lien on the real property interest that is
senior to the Mortgage Loan and (Y) a proportionate amount of any lien that is
in parity with the Mortgage Loan (unless such other lien secures a Mortgage Loan
that is cross-collateralized with such Mortgage Loan, in
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which event the computation described in clauses (1) and (2) of this paragraph
(xxx) shall be made on a pro rata basis in accordance with the fair market
values of the Mortgaged Properties securing such cross-collateralized Mortgage
Loans; or (B) substantially all the proceeds of such Mortgage Loan were used to
acquire, improve or protect the real property which served as the only security
for such Mortgage Loan (other than a recourse feature or other third party
credit enhancement within the meaning of Treasury Regulations Section
1.860G-2(a)(1)(ii)).
(xxxiv) LTV and Significant Modifications. If the Mortgage Loan was
"significantly modified" prior to the Closing Date so as to result in a taxable
exchange under Section 1001 of the Code, it either (A) was modified as a result
of the default or reasonably foreseeable default of such Mortgage Loan or (B)
satisfies the provisions of either clause (A)(1) of paragraph (xxxiii)
(substituting the date of the last such modification for the date the Mortgage
Loan was originated) or clause (A)(2) of paragraph (xxxiii), including the
proviso thereto.
(xxxv) [Intentionally Omitted.]
(xxxvi) Litigation. To the Seller's actual knowledge, there are no pending
actions, suits or proceedings by or before any court or governmental authority
against or affecting the related Mortgagor or the related Mortgaged Property
that, if determined adversely to such Mortgagor or Mortgaged Property, would
materially and adversely affect the value of the Mortgaged Property or the
ability of the Mortgagor to pay principal, interest or any other amounts due
under such Mortgage Loan.
(xxxvii) Leasehold Estate. Each Mortgaged Property consists of the related
Mortgagor's fee simple estate in real estate or, if the related Mortgage Loan is
secured in whole or in part by the interest of a Mortgagor as a lessee under a
ground lease of a Mortgaged Property (a "Ground Lease"), by the related
Mortgagor's interest in the Ground Lease but not by the related fee interest in
such Mortgaged Property (the "Fee Interest"):
1) To the actual knowledge of the Seller, such Ground Lease or a
memorandum thereof has been or will be duly recorded; such Ground
Lease (or the related estoppel letter or lender protection agreement
between the Seller and related lessor) permits the interest of the
lessee thereunder to be encumbered by the related Mortgage; and there
has been no material change in the payment terms of such Ground Lease
since the origination of the related Mortgage Loan, with the exception
of material changes reflected in written instruments that are a part
of the related Mortgage File;
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2) The lessee's interest in such Ground Lease is not subject to any liens
or encumbrances superior to, or of equal priority with, the related
Mortgage, other than Permitted Encumbrances;
3) The Mortgagor's interest in such Ground Lease is assignable to the
Purchaser and its successors and assigns upon notice to, but without
the consent of, the lessor thereunder (or, if such consent is
required, it has been obtained prior to the Closing Date) and, in the
event that it is so assigned, is further assignable by the Purchaser
and its successors and assigns upon notice to, but without the need to
obtain the consent of, such lessor;
4) Such Ground Lease is in full force and effect, and the Seller has
received no notice that an event of default has occurred thereunder,
and, to the Seller's actual knowledge, there exists no condition that,
but for the passage of time or the giving of notice, or both, would
result in an event of default under the terms of such Ground Lease;
5) Such Ground Lease, or an estoppel letter or other agreement, requires
the lessor under such Ground Lease to give notice of any default by
the lessee to the mortgagee, provided that the mortgagee has provided
the lessor with notice of its lien in accordance with the provisions
of such Ground Lease, and such Ground Lease, or an estoppel letter or
other agreement, further provides that no notice of termination given
under such Ground Lease is effective against the mortgagee unless a
copy has been delivered to the mortgagee;
6) A mortgagee is permitted a reasonable opportunity (including, where
necessary, sufficient time to gain possession of the interest of the
lessee under such Ground Lease) to cure any default under such Ground
Lease, which is curable after the receipt of notice of any such
default, before the lessor thereunder may terminate such Ground Lease;
7) Such Ground Lease has an original term (including any extension
options set forth therein) which extends not less than ten years
beyond the Stated Maturity Date of the related Mortgage Loan;
8) Under the terms of such Ground Lease and the related Mortgage, taken
together, any related insurance proceeds other than in respect of a
total or substantially total loss or taking, will be applied either to
the repair or restoration of all or part of the related Mortgaged
Property, with the mortgagee or a trustee appointed by it having the
right to hold and disburse such proceeds as the repair or restoration
progresses (except in
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such cases where a provision entitling another party to hold and
disburse such proceeds would not be viewed as commercially
unreasonable by a prudent commercial mortgage lender), or to the
payment of the outstanding principal balance of the Mortgage Loan
together with any accrued interest thereon; and
9) Such Ground Lease does not impose any restrictions on subletting which
would be viewed, as of the date of origination of the related Mortgage
Loan, as commercially unreasonable by the Seller; and such Ground
Lease contains a covenant that the lessor thereunder is not permitted,
in the absence of an uncured default, to disturb the possession,
interest or quiet enjoyment of any subtenant of the lessee, or in any
manner, which would adversely affect the security provided by the
related Mortgage
(xxxviii) Deed of Trust. If the related Mortgage is a deed of trust, a
trustee, duly qualified under applicable law to serve as such, is properly
designated and serving under such Mortgage.
(xxxix) Lien Releases. Except in cases where either (a) a release of a
portion of the Mortgaged Property was contemplated at origination of the
Mortgage Loan and such portion was not considered material for purposes of
underwriting the Mortgage Loan or (b) release is conditioned upon the
satisfaction of certain underwriting and legal requirements and the payment of a
release price, the related Mortgage Note or Mortgage does not require the holder
thereof to release all or any portion of the Mortgaged Property from the lien of
the related Mortgage except upon payment in full of all amounts due under such
Mortgage Loan.
(xl) Junior Liens. The Mortgage Loan does not permit the related Mortgaged
Property to be encumbered by any lien junior to or of equal priority with the
lien of the related Mortgage without the prior written consent of the holder
thereof or the satisfaction of debt service coverage or similar conditions
specified therein; provided, however, that the Mortgage Loan secured by Quincy
Commons Shopping Center (Mortgage Loan No. 38) permits secondary financing that
is secured by such a lien if the aggregate indebtedness secured by such Mortgage
Property (including the principal amount of such secondary financing) does not
exceed 80% of the value of such Mortgaged Property as determined under the terms
of such Mortgage Loan.
(xli) Mortgagor Bankruptcy. To the Seller's knowledge, the Mortgagor is not
a debtor in any state or federal bankruptcy or insolvency proceeding.
It is understood and agreed that the representations and warranties set
forth in this Exhibit C shall survive delivery of the respective Mortgage Files
to the Purchaser an/or the Trustee and shall inure to the benefit of the
Purchaser, and its successors and assigns
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(including without limitation the Trustee and the holders of the Certificates),
notwithstanding any restrictive or qualified endorsement or assignment.
It is understood and agreed that the representations and warranties set
forth in this Exhibit C shall survive delivery of the respective Mortgage Files
to the Purchaser and/or the Trustee and shall inure to the benefit of the
Purchaser, and its successors and assigns (including without limitation the
Trustee and the holders of the Certificates), notwithstanding any restrictive or
qualified endorsement or assignment.
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EXHIBIT D-1
FORM OF CERTIFICATE OF AN OFFICER OF
THE SELLER
CERTIFICATE OF OFFICER OF SELLER
I, _______________, a[n] [Assistant] [Secretary] of Morgan Stanley Mortgage
Capital, Inc. (the "Seller"), hereby certify as follows:
The Seller is a corporation duly organized, validly existing and in good
standing under the laws of the State of Delaware.
Attached hereto as Exhibit I are true, correct and complete copies of the
Certificate of Incorporation and By-laws of the Seller, which Certificate of
Incorporation and By-laws are on the date hereof, and have been at all times, in
full force and effect.
To the best of my knowledge, no proceedings looking toward liquidation or
dissolution of the Seller are pending or contemplated.
Each person listed below is and has been the duly elected or appointed, as
the case may be, and qualified officer, representative or authorized signatory
of the Seller and his genuine signature is set forth opposite his name:
NAME OFFICE SIGNATURE
----------------- ------------------ ------------------
----------------- ------------------ ------------------
Each person listed above who signed, either manually or by facsimile
signature, the Purchase Agreement dated as of March 20, 1997 (the "Purchase
Agreement"), between Morgan Stanley Capital I Inc. and the Seller, and any other
document or certificate delivered by or on behalf of the Seller on or before the
date hereof in connection with the transactions contemplated by the Purchase
Agreement, was, at the respective times of such signing and delivery, duly
authorized or appointed to execute such documents in such capacity, and the
signatures of such persons or facsimiles thereof appearing on such documents are
their genuine signatures.
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Capitalized terms not otherwise defined herein have the meanings assigned
to them in the Purchase Agreement.
IN WITNESS WHEREOF, the undersigned has executed this certificate as of
March 26, 1997.
By: _____________________________
Name:
Title:
I, ________________, a ___________ of Morgan Stanley Mortgage Capital,
Inc., hereby certify that ________________ is a duly elected or appointed, as
the case may be, qualified and acting [Assistant] Secretary of Morgan Stanley
Mortgage Capital, Inc., and that the signature appearing above is his/her
genuine signature.
IN WITNESS WHEREOF, the undersigned has executed this certificate as of
March 26, 1997.
By: _____________________________
Name:
Title:
D1-2
<PAGE>
EXHIBIT D-2
FORM OF CERTIFICATE OF THE SELLER
CERTIFICATE OF SELLER
In connection with the execution and delivery by Morgan Stanley Mortgage
Capital, Inc. (the "Seller") of, and the consummation of the transaction
contemplated by, that certain Mortgage Loan Purchase Agreement, dated as of
March 20, 1997 (the "Purchase Agreement"), between Morgan Stanley Capital I Inc.
and the Seller, the Seller hereby certifies that (i) the representations and
warranties of the Seller in the Purchase Agreement are true and correct in all
material respects at and as of the date hereof with the same effect as if made
on the date hereof, and (ii) the Seller has, in all material respects, complied
with all the agreements and satisfied all the conditions on its part to be
performed or satisfied at or prior to the date hereof. Capitalized terms not
otherwise defined herein have the meanings assigned to them in the Purchase
Agreement.
Certified this 26th day of March 1997.
MORGAN STANLEY MORTGAGE CAPITAL, INC.
By: _____________________________
Name:
Title:
D2-1
<PAGE>
EXHIBIT D-3
FORM OF OPINION OF COUNSEL TO THE SELLER
March 26, 1997
Morgan Stanley Capital I Inc.
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036-8293
Re: Mortgage Loan Purchase Agreement, dated as of March 20,
1997, between Morgan Stanley Mortgage Capital, Inc. and
Morgan Stanley Capital I Inc.
Ladies and Gentlemen:
This opinion is being provided to you by the undersigned, as [assistant
general] counsel of Morgan Stanley Mortgage Capital, Inc. (the "Seller"),
pursuant to Section 8(e) of the Mortgage Loan Purchase Agreement, dated as of
March 20, 1997 (the "Purchase Agreement"), between Morgan Stanley Capital I Inc.
(the "Purchaser") and the Seller, relating to the sale by the Seller of certain
mortgage loans (the "Mortgage Loans"). Capitalized terms not otherwise defined
herein have the meanings set assigned to them in the Purchase Agreement
I (or attorneys under my supervision) have examined originals or copies,
certified or otherwise identified to my satisfaction, of such corporate records
of the Seller, certificates of public officials, officers of the Seller and
other persons and other documents, agreements and instruments and have made such
other investigations as I have deemed necessary or appropriate for purposes of
this opinion.
Based upon the foregoing, I am of the opinion that:
1. The Seller is duly organized, validly existing and in good standing as
a corporation under the laws of Delaware, with full power and
authority to
D3-1
<PAGE>
execute and deliver, engage in the transactions contemplated by, and
perform and observe the terms and conditions of the Purchase
Agreement.
2. The Purchase Agreement has been duly authorized, executed and
delivered by the Seller and, upon due authorization, execution and
delivery by the Purchaser, will constitute a valid, legal and binding
agreement of the Seller, enforceable against the Seller in accordance
with its terms, except as enforceability may be limited by (a)
bankruptcy, insolvency, liquidation, receivership, moratorium,
reorganization or other similar laws relating to or affecting the
enforcement of creditors rights generally, (b) general principles of
equity, whether enforcement is sought in a proceeding in equity or at
law, and (c) public policy considerations underlying the securities
laws, to the extent such public policy considerations limit the
enforceability of the provisions of such agreement that purport to
provide indemnification from securities law liabilities.
3. No consent, approval, authorization or order of any court,
governmental agency or body is required in connection with the
execution, delivery and performance by the Seller of the Purchase
Agreement, except for those consents, approvals, authorizations or
orders that previously have been obtained.
4. The transfer of the Mortgage Loans as provided in the Purchase
Agreement and the fulfillment of the terms of the Purchase Agreement
will not conflict with or result in a violation of the certificate of
incorporation or bylaws of the Seller, any law, rule or regulation
applicable to the Seller or its property, or any agreement or
instrument, order, writ, judgment or decree to which the Seller is a
party or is subject.
5. To the best of my knowledge, there are no actions or proceedings
against the Seller pending (with regard to which the Seller has
received service of process) or overtly threatened in a writing
received by me, before any court, governmental agency or arbitrator
which affect the enforceability of the Purchase Agreement, or which
would draw into question the validity of the Purchase Agreement or any
action taken or to be taken in connection with the Seller's
obligations contemplated therein, or which would materially impair the
Seller's ability to perform under the terms of the Purchase Agreement.
D3-2
<PAGE>
The opinions expressed herein are limited to the laws of the State of New
York, the federal law of the United States.
This opinion is given to you for your sole benefit, and no other person or
entity is entitled to rely hereon without our express written consent.
Very truly yours,
D3-3
<PAGE>
EXHIBIT E
REPRESENTATIONS AND WARRANTIES MADE BY HELLER
<PAGE>
EXHIBIT 1
(i) With respect to the identity and status of the Mortgage Loans:
(A) Each Mortgage Loan was originated by Seller substantially in
conformance with Seller's underwriting criteria, including a review of the
environmental report, engineering report and appraisal in respect of the
related Mortgaged Property. Each Mortgage Loan is a fixed-rate loan.
(B) The information set forth in the Mortgage Loan Schedule is
accurate in all material respects. The terms of each Mortgage Note and the
related Mortgage have not been impaired, waived, altered or modified in any
respect, except by written instruments which are in the Mortgage File, and
the substance of which are reflected on the Mortgage Loan Schedule. No
Mortgagor has been released, in whole or in part, except in connection with
an assumption agreement which is part of the Mortgage File and the terms of
which are reflected in the Mortgage Loan Schedule. The Mortgage File has
been delivered by Seller to Purchaser or a custodian designated by
Purchaser.
(C) Immediately prior to the sale of the Mortgage Loans to Purchaser,
Seller had good record title to, and was the sole owner of, each Mortgage
Loan, and such sale validly transfers each Mortgage Loan to Purchaser, as
its transferee or designee, free and clear of any pledge, lien,
encumbrance, participation, security interest or other adverse interest.
The sale of the Mortgage Loans pursuant to the Agreement on the date hereof
will effect a transfer by Seller of all of its right, title and interest in
the Mortgage Loans to Purchaser.
(D) Each Mortgage Loan has not been 30 days delinquent more than once
during the twelve months preceding the Cut-off Date or, in the case of the
those Mortgage Loans originated in the twelve month period prior to the
Closing Date, since the date of funding or acquisition. For purposes of the
foregoing, a Mortgage Loan is not 30 days delinquent until a payment
required to be made to the mortgagee is past due on the succeeding due
date.
(E) To Seller's Knowledge, there is no material default, breach,
violation or other event permitting acceleration under any Mortgage or the
related Mortgage Note or any of the other documents evidencing, securing,
guaranteeing, insuring or otherwise relating to the Mortgage Loan and, to
Seller's Knowledge, no event has occurred which, with the passage of time
or with notice and the expiration of any grace or cure period, would
constitute such a default, breach, violation or other event permitting
acceleration. Seller has not waived any such default, breach, violation or
other event permitting acceleration. No foreclosure action, exercise of
power of sale or other enforcement action is, or in the past has been,
threatened in writing or commenced with respect to any Mortgage Loan.
<PAGE>
(F) There are no delinquent or unpaid taxes or assessments (including
assessments payable in future installments), or other outstanding charges
affecting any Mortgaged Property which are or may become a lien of equal
to, or higher priority than, the lien of the related Mortgage.
(G) With respect to escrow desposits and payments, all such payments
are in the possession of, or under the control of, Seller and there exist
no deficiencies in connection therewith for which customary arrangements
for repayment thereof have not been made.
(H) The origination, servicing and collection practices used by Seller
have been in all respects legal, proper and prudent and have met customary
industry standards.
(I) No Mortgage has been satisfied, canceled, rescinded or
subordinated and the related Mortgaged Property has not been released from
the lien of the Mortgage, in whole or in part, nor has any instrument been
executed that would effect any such satisfaction, cancellation,
subordination, rescission or release.
(J) As of either of (i) the date hereof or (ii) the later of (A) the
date of the origination of each Mortgage Loan or (B) the date of the most
recent "significant modification" of each such Mortgage Loan within the
meaning of Section 1001 of the Code, the principal amount of each Mortgage
Loan does not exceed 125% of the Tax Fair Market Value of the related
Mortgaged Property (pro rating Mortgage Loans secured by
cross-collateralized Mortgaged Properties).
(K) To Seller's Knowledge, no Mortgagor is a debtor in any State or
Federal bankruptcy or insolvency proceeding.
(L) The "Permitted Exceptions" do not and will not materially and
adversely interfere with (i) the ability of the Mortgagor to pay in full
the principal and interest on the Mortgage Note; or (ii) the use of the
Mortgaged Property for the use currently being made thereof. "Permitted
Exceptions" shall mean those permitted exceptions to which the title
insurance policy for each Mortgage Loan is subject, as provided in each
such title insurance policy.
(M) The organizational documents of each Mortgagor at the time the
Mortgage Loan was made limit its purpose to the ownership, operation,
lease, management and disposition of the Mortgaged Property.
(ii) With respect to each Mortgaged Property:
(A) The Mortgaged Property consists of an estate in fee simple in real
estate, except with respect to those Mortgage Loans listed on Exhibit
(ii)-A hereto, and improvements owned by the Mortgagor, and, to Seller's
Knowledge, is lawfully operated by the Mortgagor in accordance with
applicable law, including zoning and building laws and regulations.
<PAGE>
(B) To Seller's Knowledge, the Mortgaged Property is free of material
damage and is in good repair, other than as set forth on Exhibit (ii)-B
hereto, and there is no proceeding pending for the total or partial
condemnation of or affecting the Mortgaged Property. An Engineering Report
was obtained for the Mortgaged Property at the time of origination of the
Mortgage Loan and, with respect to those Mortgage Loans specified on the
Mortgage Loan Schedule, either (i) a special purpose reserve was funded by
the Mortgagor at the closing of the Mortgage Loan to pay the costs of all
significant items of deferred maintenance or other deficiencies, if any,
noted in the Engineering Report or (ii) the Mortgagor covenanted to make
such repairs.
(C) The Mortgage File contains a Phase 1 environmental report prepared
by a reputable environmental engineer or consultant. To Seller's Knowledge,
neither the related Mortgagor nor any current tenant thereon has received
any notice of any violation or potential violation of any law pertaining to
environmental hazards not otherwise described in such report.
(D) To Seller's Knowledge, all amenities on the Mortgaged Property
that materially benefit the Mortgaged Property or are necessary for the
legal and efficient operation and use thereof are under the control of the
Mortgagor. The Mortgaged Property is contiguous and has adequate ingress
and egress to a physically open, publicly dedicated street and is
adequately serviced by public or on-site water systems, sewer or septic
systems and utilities.
(E) With respect to each Mortgaged Property, Seller has not assigned
its interest in any leases, any portion of the rents, additional rents,
charges, issues or profits due and payable or to become due and payable
thereunder or subjected such interests such that the priority of the lien
of the Mortgage Loan in such leases has been adversely affected.
(iii) With respect to the underwriting characteristics of each Mortgage Loan:
(A) The Mortgage File contains an appraisal of the related Mortgaged
Property, and the appraisal used to determine the appraised value of the
Mortgaged Property in connection with the origination of the Mortgage Loan
was made by an MAI-designated appraiser. At the time the appraisal was
performed, such appraiser had no interest or bias with respect to the
parties involved and had no present or prospective interest, direct or
indirect, in the Mortgaged Property. The compensation of such appraiser was
not related to the approval or disapproval of the Mortgage Loan or the
appraised value of the Mortgaged Property. The appraisal is in a narrative
format, and in form and substance meets the professional standards of the
American Institute of Real Estate Appraisers and the Society of Real Estate
Appraisers. The appraisal states that the appraiser examined the Mortgaged
Property. No subsequent appraisals were performed by or on behalf of
Seller. Such appraisal meets the requirements of FIRREA.
<PAGE>
(B) The proceeds of the Mortgage Loan have been fully disbursed and
there is no obligation for future advances with respect to the Mortgage
Loan, and no such advances have been made. Any and all requirements as to
completion of any on-site or off-site improvements and as to disbursements
of any escrow funds therefor that were to have been complied with on or
before the date hereof have been complied with.
(C) Seller has not, directly or indirectly, advanced funds, or
received any advance of funds by a party other than the Mortgagor, for or
on account of principal and interest payments due on the Mortgage Loan.
(iv) With respect to the documentation of each Mortgage Loan:
(A) The Mortgaged Property securing each Mortgage Loan does not secure
any other mortgage indebtedness. No default or event of default shall occur
under the Mortgage Note or Mortgage by reason of a default in respect of
any obligation not directly related to the Mortgaged Property. No Mortgagor
is an Affiliate of any other Mortgagor other than as set forth in Exhibit
(iv)-A hereto.
(B) The Mortgage Loan complies in all material respects with the
requirements of applicable local, state and federal laws and regulations,
including, without limitations, usury, equal credit opportunity, and
disclosure laws, and consummation of the sale of the Mortgagee Loans by
Seller to Purchaser contemplated by this Agreement will not result in the
violation of any such laws or regulations.
(C) The Mortgage Note, related Mortgage, any guaranty thereof, any
assignment of leases and/or rents, any security agreement and any chattel
mortgage are genuine and each is the legal, valid and binding obligation of
the maker thereof, enforceable in accordance with its terms, except as such
enforcement may be limited by bankruptcy, insolvency, moratorium or other
laws affecting creditor's rights generally, or by the application of the
rules of equity.
(D) The Mortgage creates a valid and enforceable first priority lien
on the Mortgaged Property, including all improvements on the Mortgaged
Property and all other fixtures, building equipment and personal property
necessary to the operation or maintenance of the Mortgaged Property and
located thereon, and all additions, alterations and replacements made at
any time with respect to the foregoing, except as enforceability may be
limited by bankruptcy, insolvency, moratorium or other laws affecting
creditors' rights generally or by the application of the rules of equity.
Such lien is subject only to the exceptions set forth in the lender's title
insurance policy hereinafter referred to. All furniture, fixtures,
equipment and all other personal property covered by any security
agreement, assignment of leases and/or rents, chattel mortgage or
equivalent document related to or delivered in connection with the Mortgage
Loan in those jurisdictions in which the Mortgage cannot include such
property, in accordance with practices which are customary among prudent
mortgage lenders, are subject to a Uniform Commercial Code financing
statement filed and/or recorded in all places necessary to perfect a valid
first priority lien thereon. The Mortgage Loan does not permit the
Mortgagor to require the release of all or any portion of the Mortgaged
Property from the lien of the related
<PAGE>
Mortgage other than upon payment in full of the Mortgage Loan other than as
set forth in Exhibit (iv)-D hereto.
(E) There are no mechanics' or similar liens or claims which have been
filed for work, labor or material and, as of the date such Mortgage Loan
was closed, there are no claims outstanding that under applicable law could
give rise to such lien, affecting the related Mortgaged Property which are
or may be a lien prior to, or equal or coordinate with, the lien of the
related Mortgage.
(F) To Seller's Knowledge, the Mortgage Note and the Mortgage are not
subject to any right or rescission, set-off, counterclaim or defense,
including the defense of usury, nor does the operation of any of the terms
of the Mortgage Note and the Mortgage, or the exercise of any right
thereunder, render the Mortgage unenforceable (subject to the limitations
on enforceability listed in paragraph (iv) (C) above), in whole or in part,
or subject to any right of rescission, set-off, counterclaim or presently
existing or inchoate defense, including the defense of usury, and no such
right of rescission, set-off, counterclaim or defense has been asserted to
Seller in writing with respect thereto.
(G) All of the improvements on the property which were considered in
determining the appraised value of the related Mortgaged Property lie
wholly within the boundaries and building restriction lines of such
property, and no improvements on adjoining properties encroach upon the
Mortgaged Property so as to materially and adversely affect the value or
marketability of the Mortgaged Property except those which are insured
against by the title insurance policy referred to below.
(H) All parties that have had any interest in any Mortgage Loan, whether as
mortgagee, assignee, pledgee or otherwise, were, during the period in which they
held and disposed of such interest, (1) in compliance with any and all
applicable licensing requirements of the laws of the state in which the related
Mortgaged Property is located to the extent necessary to ensure the
enforceability of the Mortgage Loan, (2) organized under the laws of such state,
or qualified to do business in such state, (3) federal savings and loan
associations, savings banks or national banks having principal offices in such
state, or (4) not doing business in such state so as to require qualification as
a foreign corporation to ensure the enforceability of the Mortgage Loan; except,
in each case, to the extent failure of such party to be within clauses (1)
through (4) does not adversely affect the enforceability of such Mortgage Loan.
(I) If the Mortgage is a deed of trust, except in connection with a
trustee's sale after default by the Mortgagor, no fees or expenses are
payable to the trustee by Seller, Purchaser or any transferee thereof.
<PAGE>
(J) Either the Mortgage contains an assignment of leases or an
assignment of rents or there is a separate document providing for such
assignments, either of which creates in favor of the holder thereof a
valid, perfected and enforceable lien (as limited by bankruptcy law), of
the same priority as the related Mortgage, in the property and rights
described therein. Seller has the full right to assign to Purchaser such
assignment of leases and the lien created thereby as described in the
immediately preceding sentence.
(v) With respect to insurance coverages:
(A) A title insurance company, qualified to do business in the state
where the related Mortgaged Property (except in the case of Mortgaged
Properties located in Iowa) is located, meeting Seller's underwriting or
credit policies in effect at time of origination or acquisition, has issued
a standard American Land Title Association lender's title insurance policy,
or if such policy is not permitted by applicable law, a policy which is
permitted, in favor of Seller and its successors and assigns as the sole
insured thereunder, insuring the first priority of the lien of the Mortgage
on such Mortgaged Property in the original principal amount of the Mortgage
Loan after all advances of principal, subject to the exceptions (general
and specific) stated therein. Such Title Policy is assignable to or
endorsable in favor of Purchaser without the consent of or notice to the
insurer or such consent has been obtained. On the date of the transfer and
assignment of the Mortgage Loan to Purchaser, such Title Policy is valid
and in full force and effect, with all premiums thereon having been paid,
and immediately following the transfer and assignment of such Mortgage Loan
to Purchaser, such Title Policy, will inure to the benefit of Purchaser.
Seller has not made any claim under such Title Policy, and, to Seller's
Knowledge, no act or omission has occurred that would materially impair or
extinguish the coverage provided by such policy.
(B) The Title Policy insured the first priority lien of the Mortgage
subject only to (1) the lien of then current real property taxes and
assessments not yet due and payable; (2) covenants, conditions and
restrictions, rights of way, easements and other matters of public record
as of the date of recording of the Mortgage which would generally be deemed
by prudent institutional mortgage lenders to be acceptable under the laws
of the jurisdiction in which the Mortgaged Property is located, or for
which affirmative insurance or endorsements against loss by reason of such
matters have been obtained; and (3) the matters identified in the survey
reference contained in the Title Policy provided that such survey reference
does not indicate that any improvements lie outside the boundaries and
building restriction lines of the Mortgaged Property or that improvements
on adjoining properties encroach upon the Mortgaged Property or easements
running thereto, except those which would generally be deemed by prudent
institutional mortgage lenders to be customary, immaterial or otherwise
acceptable under the laws of the jurisdiction in which the Mortgaged
Property is located and, provided further, that the Title Policy coverage
is not subject to any state of facts that an accurate survey or personal
inspection may show.
<PAGE>
(C) All improvements upon the Mortgaged Property are insured by an
insurer having a General Policy Rating of A-:V or better in Best's Key
Rating Guide, against loss by hazards of extended coverage and such other
hazards as are customarily required by a prudent mortgage lender in the
area where the Mortgaged Property is located in an amount which is at least
equal to the lesser of the outstanding principal balance of the Mortgage
Loan or the maximum insurable value of the Mortgaged Property, provided
that, based on the value of the Mortgaged Property on the date of
origination, such amount is sufficient on such date to avoid the
application of any co-insurance provisions. The related Mortgage obligates
the related Mortgagor to maintain all such insurance and, at such
Mortgagor's failure to do so, authorizes the Mortgagee to maintain such
insurance at the Mortgagor's cost and expense and to seek reimbursement
therefor from such Mortgagor. If any material improvements constituting a
portion of the Mortgaged Property are in an area identified in the Federal
Register by the Flood Emergency Management Agency as having special flood
hazards, and flood insurance is available, a flood insurance policy meeting
the requirements of the current guidelines of the Federal Insurance
Administration is in effect with a generally acceptable insurance carrier,
in an amount representing coverage not less than the least of (1) the
outstanding principal balance of the Mortgage Loan, and (2) the full
insurable value of the Mortgaged Property, and (3) the maximum amount of
insurance available under the National Flood Insurance Act of 1968, as
amended. All such insurance policies (collectively, the "hazard insurance
policy") contain a standard "New York" mortgagee clause naming Purchaser,
its successors and assigns (including without limitation, subsequent owners
of the Mortgage Loan), as mortgagee, are not terminable and may not be
reduced without thirty (30) days' prior written notice to the mortgagee,
and all premiums payable thereon, whether annual or otherwise, have been
paid. No notice of termination or cancellation has been received with
respect to any such hazard insurance policy and remains uncured. Seller has
not engaged in any act or omission which would materially impair the
coverage of any such policy or the benefits of the mortgagee endorsement.
(D) To Seller's Knowledge, no action, error, omission,
misrepresentation, negligence or fraud was made in the origination or
servicing of the Mortgage Loan that would result in a failure or impairment
of full and timely coverage under any insurance policy required to be
obtained for the Mortgage Loan.
(E) Any insurance proceeds from policies described in paragraph (C)
above 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, or
to the payment of the outstanding principal balance of such Mortgage Loan
together with an accrued interest thereon.
(F) The Mortgage Loan does not permit the Mortgagor to obtain
additional financing which would result in a lien against the Mortgaged
Property.
(G) The Mortgage contains provision for the acceleration of the
payment of the unpaid principal balance of the Mortgage Loan in the event
the related Mortgaged Property is sold without the prior consent of Seller.
<PAGE>
(vi) To Seller's Knowledge, with respect to each Mortgage Loan:
(A) The Management Agreement, if any, is in full force and effect and
there is no default, breach or violation existing thereunder by any party
thereto and no 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 constitute a default, breach or violation by
any party thereunder.
(B) The Mortgagor owns and/or possesses, and holds free from
burdensome restrictions or known conflicts with the rights of others, all
material licenses, registrations, permits, certificates, authorizations and
approvals necessary for the operation of the Mortgaged Property.
(C) Neither the execution and delivery of the Mortgage Note, the
Mortgagor's performance thereunder, nor the recordation of the Mortgage,
will adversely affect the licenses, registrations, permits, certificates,
authorizations and approvals necessary for the operation of the Mortgaged
Property.
(vii) Seller hereby represents and warrants to Purchaser as to each Mortgage
Loan as of the Cut-off Date, as follows:
(A) interest on each Mortgage Loan is calculated on the basis of a
year deemed to consist of twelve 30-day months;
(B) no Mortgage Loan contains provisions for additional interest or
other payments calculated by reference to revenues, financing or sale
proceeds from or appreciation of the Mortgaged Property;
(C) the indebtedness evidenced by a Mortgage Loan is not convertible
to an ownership interest in the related Mortgaged Property or the related
borrower;
(D) each Mortgage Loan is a "qualified mortgage" within the meaning of
Section 860G(a)(3)(A) of the Code (without regard to the transfer or
purchase obligation set forth therein and Treasury Regulation ss.
1.860G-2(f) or any similar rule that provides that a defective obligation
is a qualified mortgage for a temporary period);
(E) none of the Mortgage Loans can be repaid by their terms for an
amount less than the outstanding principal amount thereof plus accrued
interest;
(F) no Mortgage Loan bears interest at a rate that is subject to a
maximum rate calculated by reference to the Mortgagor's receipts, income or
profits; and
(G) no Mortgage Loan provides for payment of a prepayment penalty or
premium other than prepayment penalties or premuims of a type and in an
amount that is customary for such type of Mortgage Loan.
EXHIBIT F
REPRESENTATIONS AND WARRANTIES MADE BY GAL
<PAGE>
With respect to the purchase of Committed Loans and other Loans being
initially made to the related Mortgagor on the applicable Closing Date, the
Initial Purchaser and the Company agree that the Purchase Price of each such
Committed Loan or Other Loan will be sent by the Initial Purchaser by wire
transfer in immediately available funds to the title company designated by the
Company as closing such Committed Loan or Other Loan. Each such title company
shall be required by the Company to remit any excess of the Purchase Price over
the actual principal amount of such Committed Loan or Other Loan to the Company
by overnight delivery or wire transfer. Once a Committed Loan or such an Other
Loan has been closed, the Company shall consider the Purchase Price as paid and
the Company shall hold the Mortgage Note and other related and collected loan
documents (including, without limitation, the documents specified in Section 3.3
(b) through (o), inclusive, and Exhibit A (except as set forth in the related
Exception Schedule), in trust, as evidenced and required by a trust receipt in
the form of Exhibit H attached hereto, for the Initial Purchaser until such time
as the Initial Purchaser and the Company mutually agree (which time, at the
reasonable request of the Initial Purchaser, shall be, except as otherwise
provided in respect of the original recorded documents specified in Section 3.3
(b) and (d) and the original title insurance policy specified in Section 3.3
(f), no later than the 30th day following the applicable Closing Date) to have
the Company forward such Mortgage Note and all collected documents held in trust
relating to each such Committed Loan or Other Loan to the Initial Purchaser or
to a custodian designated by the Initial Purchaser.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES
OF THE COMPANY AND THE INITIAL PURCHASER;
REPURCHASE OF PURCHASED MORTGAGE LOANS
Section 4.1 Individual Purchased Mortgage Loans.
The Company hereby represents and warrants to the Purchaser that, as to
each Purchased Mortgage Loan, as of the applicable Closing Date:
29
<PAGE>
ML Schedule
(a) The information set forth on the applicable Mortgage Loan Schedule is
complete, true and correct as of the applicable Closing Date;
Good Title
(b) The Mortgage Note and the Mortgage have not been assigned or pledged,
and the Company has good and marketable title thereto, and the Company
is the sole owner and holder of the Purchased Mortgage Loan free and
clear of any and all liens, claims, encumbrances, participation or
contingent interests, shared appreciation features, equities, pledges,
charges or security interests of any nature and has full right and
authority, subject to no interest or participation of, or agreement
with, any other party, to sell and assign the same pursuant to this
Agreement;
Valid Mortgage
(c) The Mortgage is a valid, subsisting and enforceable and perfected
first lien on the Mortgaged Property, including all buildings and
improvements on the Mortgaged Property and all installations and
mechanical, electrical, plumbing, heating and air conditioning systems
located in or annexed to such buildings, and all additions,
alterations and replacements made at any time with respect to the
foregoing, securing the Mortgage Note's original principal balance.
The Mortgage directly secures the related Mortgage Note. The Mortgaged
Property is free and clear of all encumbrances and liens having
priority over the first lien of the Mortgage subject only to (i) the
lien of current real property taxes and assessments not yet due and
payable (ii) covenants, conditions and restrictions, rights of way,
easements and other matters of public record as of the date of
recording of the Mortgage, such exceptions appearing of record being
acceptable to prudent mortgage lending institutions generally, and
(iii) other matters to which like properties similarly situated and of
a similar nature are commonly subject which do not materially
interfere with the benefits of the security intended to be provided by
the Mortgage or the use, enjoyment, value or marketability of the
related Mortgaged Property. Any exceptions permit-
30
<PAGE>
ted in clauses (i), (ii) and (iii) hereof are specifically referred to
in the lender's title insurance policy delivered to the originator of
the Purchased Mortgage Loan. The Mortgaged Property was not, as of the
date of origination of the Purchased Mortgage Loan, subject to a
mortgage, deed of trust, deed to secure debt or other security
instrument creating a lien subordinate to the lien of the Mortgage.
Any security agreement, chattel mortgage or equivalent document
related to the Mortgage and delivered to the Purchaser establishes in
the Company a valid and subsisting first lien on the property
described therein, and the Company has full right to sell and assign
the same to Purchaser;
(d) The Purchased Mortgage Loan contains no equity participation by the
lender and does not provide for contingent or additional interest in
the form of cash flow from the related Mortgaged Property, and the
indebtedness evidenced by the Mortgage Note is not convertible to an
ownership interest in the related Mortgaged Property or the related
Obligor;
(e) The terms of the Mortgage Note and the Mortgage have not been
impaired, altered or modified in any respect, except by a written
instrument which has been recorded, if necessary, to protect the
interest of Purchaser and which has been delivered to the Purchaser.
The substance of any such alteration or modification is reflected on
the Mortgage Loan Schedule;
(f) No Purchased Mortgage has been satisfied, canceled, rescinded or
subordinated and the related Mortgaged Property has not been released
from the lien of the Mortgage, in whole or in part, not has any
instrument been executed that would effect any such satisfaction,
cancellation, subordination, rescission or release nor has any
Mortgagor been released, in whole or in part, except in connection
with an assumption agreement which has been delivered to the
Purchaser;
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(g) There are no defaults in complying with the terms of the Mortgage, and
all taxes, governmental assessments, insurance premiums, water, sewer
and municipal charges, leasehold payments or ground rents which
previously became due and owing have been paid, or an escrow of funds
has been established in an amount sufficient to pay for every such
item which remains unpaid and which has been assessed but is not yet
due and payable. The Company has not advanced funds, or induced,
solicited or knowingly received any advance of funds by a party other
than the Mortgagor, directly or indirectly, for the payment of any
amount required by the Mortgage except for interest accruing from the
date of the related Mortgage Note or date of disbursement of the
Purchased Mortgage Loan proceeds, whichever is earlier, to the day
which precedes by one month the due date of the first installment of
principal and interest;
(h) There is no proceeding pending, or to the actual knowledge of the
Company, threatened for the total or partial condemnation of the
Mortgaged Property, or pending or, to the actual knowledge of the
Company, threatened for the relocation of roadways providing access to
the Mortgaged Property, nor has such proceeding occurred or is such
proceeding currently occurring, and such property is undamaged by
waste, fire, earthquake or earth movement, windstorm, flood, tornado
or other casualty, so as to affect adversely the value of the
Mortgaged Property as security for the Purchased Mortgage Loan or the
use for which the premises were intended;
(i) There are no mechanics or similar liens or claims which have been
filed for work, labor or material (and no rights are outstanding that
under law could give rise to such lien) affecting the Mortgaged
Property which are, or may be, liens prior or equal to, or coordinate
with, the lien of the Mortgage;
(j) All of the improvements which were included for the purpose of
determining the Appraised Value
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of the Mortgaged Property lie wholly within the boundaries and
building restriction lines of such Mortgaged Property (and wholly
within the project with respect to a condominium unit), and no
improvements on adjoining properties encroach upon the Mortgaged
Property, except those which are insured against by the title
insurance policy referred to in clause (q) below;
(k) No improvement located on or being part of the Mortgaged Property is
in violation of any applicable zoning law or regulation. The Mortgaged
Property and the use thereof complies with all applicable Legal
Requirements, including those relating to security deposits with
respect to the Mortgaged Property. The Mortgaged Property is used
exclusively for commercial purposes and other appurtenant and related
uses. All permits, inspections, approvals, licenses, franchises and
certificates required to be made or issued with respect to the use and
occupancy of the Mortgaged Property, including but not limited to
certificates of occupancy, licenses and fire underwriting
certificates, have been made or obtained from the appropriate
authorities and the Mortgaged Property is lawfully occupied under
applicable law. The Mortgaged Property complies in all respects with
the Americans with Disabilities Act;
(l) All payments required to be made up to the Closing Date for each
Purchased Mortgage Loan under the terms of the related Mortgage Note
have been made. No payment has been more than thirty days delinquent
during the 12-month period immediately preceding the Closing Date. As
to any Purchased Mortgage Loan originated within the 12-month period
immediately preceding the Closing Date, no payment required under any
such Purchased Mortgage Loan has ever been delinquent more than 30
days;
(m) The Mortgage File contains each of the documents and instruments
specified to be included therein duly executed and in proper form;
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(n) The Mortgage Note, the related Mortgage and the Assignment of Leases
are genuine, and each is the legal, valid and binding obligation of
the maker thereof, enforceable in accordance with its terms. All
parties to the Mortgage Note, the Mortgage and the Assignment of
Leases had legal capacity to execute the Mortgage Note, the Mortgage
and the Assignment of Leases, and each of the Mortgage Note, the
Mortgage and the Assignment of Leases have been duly and properly
executed by such parties. No Mortgagor was a debtor in any state or
federal bankruptcy or insolvency proceeding at the time the Purchased
Mortgage Loan was originated, and, to the Company's best knowledge, no
Mortgagor is currently a debtor in any state or federal bankruptcy or
insolvency proceeding;
(o) Any and all requirements of any federal, state or local law including,
without limitation, usury, truth-in-lending, real estate settlement
procedures, consumer credit protection, equal credit opportunity or
disclosure laws applicable to the Purchased Mortgage Loan have been
complied with, the consummation of the transactions contemplated
hereby will not involved the violation of any such laws, and the
Company shall maintain in its possession, available for the
Purchaser's inspection, and shall deliver to Purchaser upon reasonable
demand, evidence for compliance with all such requirements;
(p) The proceeds of the Purchased Mortgage Loan have been fully disbursed,
and there is no requirement for future advances thereunder. All costs,
fees and expenses incurred in making, or closing or recording the
Purchased Mortgage Loans were paid and the Mortgagor is not entitled
to any refund of any amounts paid or due under the Mortgage Note or
Mortgage;
(q) Any future advances made prior the Closing Date, have been
consolidated with the outstanding principal amount secured by the
Mortgage, and the secured principal amount, as consolidated, bears a
single interest rate and single repayment term reflected on the
Mortgage Loan
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Schedule. The lien of the Mortgage securing the consolidated principal
amount is expressly insured as having first lien priority by a title
insurance policy or an endorsement to the policy insuring the
mortgagee's consolidated interest. The consolidated principal amount
does not exceed the original principal amount of the Purchased
Mortgage Loan. The Company shall not make future advances after the
Closing Date;
(r) Each Purchased Mortgage Loan is covered by an ALTA or CLTA or Texas
Form T-2 mortgagee title insurance policy with an adjustable rate
endorsement, if applicable, substantially in the form of ALTA Form 6.1
or 6.2 or such other generally acceptable form of policy, issued by
and the valid and binding obligation of the title insurer qualified to
do business in the jurisdiction where the property subject to the
Mortgage is located, insuring the Company, its successors and assigns,
as to the first priority lien of the Mortgage in the original
principal amount of the Purchased Mortgage Loan. The Company is the
sole named insured of such mortgagee title insurance policy, the
assignment to the Purchaser of the Company's interest in such
mortgagee title insurance policy does not require the consent of or
notification to the insurer, and such mortgagee title insurance policy
is in full force and effect and will be in full force and effect and
inure to the benefit of Purchaser upon the consummation of the
transactions contemplated by this Agreement. No claims have been made
under such mortgagee title insurance policy and no prior holder of the
related Mortgage, including the Company, has done, by act or omission,
anything which would impair the coverage of such mortgagee title
insurance policy;
(s) All improvements upon the Mortgaged Property are insured by an insurer
that satisfies the criteria set forth in the Company Guidelines
against loss by fire, hazards of extended coverage and such other
hazards as are customary in the area where the Mortgaged Property is
35
<PAGE>
located, pursuant to insurance policies conforming to the requirements
of Section 5.9 hereof. All individual insurance policies and all
blanket insurance policies (collectively, "Hazard Insurance Policy")
are the valid and binding obligation of the insurer and contain a
standard mortgagee clause naming the Company, its successors and
assigns, as mortgagee and/or loss payee. If upon origination of the
Purchased Mortgage Loan, the Mortgaged Property was located in an area
identified in the Federal Register by the Federal Emergency Management
Agency as being a special flood hazard area that has
federally-mandated flood insurance requirements, a flood insurance
policy is in effect in an amount equal to the lesser of the principal
amount of the Purchased Mortgage Loan and the maximum coverage then
available from a private insurance carrier (or, if flood insurance is
available only from the federal or state government, in an amount
equal to the maximum amount available from the federal or state
government). All premiums thereon other than those not yet due and
payable have been paid. The Mortgage obligates the Mortgagor
thereunder to maintain all such insurance at Mortgagor's cost and
expense, and upon the Mortgagor's failure to do so, authorizes the
holder of the Mortgage to call an event of default or, at holder's
option, to obtain and maintain such insurance at Mortgagor's cost and
expense and to seek reimbursement therefor from the Mortgagor. Each
Mortgage requires the Mortgagor to maintain rent or business
interruption insurance and, unless otherwise set forth in the
applicable Mortgage Loan Schedule, comprehensive general liability
insurance in an amount that satisfies the criteria set forth in the
Company Guidelines;
(t) There is not default, breach, violation or event of acceleration
existing under the Mortgage or the related Mortgage Note and no event
which, with the passage of time or with notice and the expiration of
any grace or cure period, would constitute a default, breach,
violation or event of acceleration, and the Company has not
36
<PAGE>
waived any default, breach, violation or event of acceleration;
(u) The Purchased Mortgage Loan is not subject to any right of rescission,
set-off, counterclaim or defense, including the defense of usury, nor
will the operation of any of the terms of the Mortgage Note or the
Mortgage, or the exercise of any right thereunder, render either the
Mortgage Note or the Mortgage unenforceable, in whole or in part, or
subject to any right or rescission, set-off, counterclaim or defense,
including the defense of usury, and no such right or rescission,
set-off, counterclaim or defense has been asserted with respect
thereto;
(v) The Purchased Mortgage Loans are fixed rate mortgage loans of the type
set forth in the applicable Mortgage Loan Schedule. As of the Closing
Date, the aggregate amount of the Purchased Mortgage Loans is as set
forth in the applicable Mortgage Loan Schedule. The stated maturity of
the Purchased Mortgage Loans is as set forth in the applicable
Mortgagae Loan Schedule. Each Mortgage Note requires a monthly payment
which, together with the Balloon Payment, is sufficient to fully
amortize the original principal balance over the original term thereof
and to pay interest at the related Mortgage Interest Rate. No
Purchased Mortgage Loan contains terms or provisions which would
result in negative amortization. The Purchased Mortgage Loan amortizes
over an amortization schedule as set forth on the Mortgage Loan
Schedule with a final balloon of the entire remaining principal amount
of such Purchased Mortgage Loan on the stated maturity date set forth
therein;
(w) The Mortgage contains an enforceable provision for the acceleration of
the payment of the unpaid principal balance of the Purchased Mortgage
Loan in the event the related Mortgaged Property is sold without the
prior consent of the Company thereunder in substantially the form set
forth in the Company Guidelines;
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(x) No Purchased Mortgage Loan was made for the purpose of construction or
rehabilitation;
(y) The related Mortgage Note is not and has not been secured by any
collateral, pledged account or other security except the lien of the
corresponding Mortgage, the Assignment of Leases and any other
Mortgage cross-collateralizing such Mortgage Note and the security
interest of any applicable security agreement or chattel mortgage
referred to in Section 5.1(c);
(z) The related Mortgage contains customary and enforceable provisions
which render the rights and remedies of the holder thereof adequate
for the realization against the Mortgaged Property of the benefits of
the security, including, (i) in the case of a Mortgage designated as a
deed of trust, by trustee's sale, and (ii) otherwise by judicial
foreclosure. Upon default by the Mortgagor on the Purchased Mortgage
Loan and foreclosure on, or trustee's sale of, the Mortgaged Property
pursuant to proper procedures, the holder of the Mortgage will be able
to deliver good and marketable title to the Mortgaged Property. There
is no exemption available to the Mortgagor which would interfere with
the right to sell the Mortgaged Property at a trustee's sale or the
right to foreclose the Mortgage subject to applicable federal and
state laws and judicial precedents with respect to bankruptcy and
right or redemption;
(aa) With respect to each Mortgage constituting a deed of trust, a trustee,
authorized and duly qualified under applicable law to serve as such,
has been properly designated and currently so serves and is named in
such Mortgage, and no fees or expenses are or will become payable by
the Purchaser to the trustee under the deed of trust, except in
connection with a trustee's sale after default by the Mortgagor;
(ab) The Mortgaged Property is located in the State(s) identified in the
Mortgage Loan Schedule. The Mortgaged Property consists of a fee
simple estate in one or more parcels of real
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<PAGE>
property improved by a commercial building or complex erected thereon.
Each parcel included in the Mortgaged Property constitutes a separate
tax lot and none of which constitutes a portion of any other tax lot.
The Mortgagor is not permitted to suffer, permit or initiate the joint
assessment of the Mortgaged Property with any other real property
constituting a separate tax lot and with any portion of the Mortgaged
Property which may be deemed to constitute personal property, or any
other procedure whereby the lien of any taxes which may be levied
against such personal property shall be assessed or levied or charged
to the Mortgaged Property as a single lien;
(ac) The Loan-to-Value Ratio of the related Purchased Mortgage Loan was as
is set forth on the applicable Mortgage Loan Schedule and in any event
less than 125%;
(ad) The Purchased Mortgage Loan was underwritten in accordance with the
Company's underwritten standards for commercial real property at the
time the Purchased Mortgage Loan was originated and the Company has
not made any representations to the mortgagor that are inconsistent
with the Mortgage instruments used. To the extent required under
applicable law, the Company was authorized to originate the Purchased
Mortgage Loan at the time of origination and the Company or its
Servicing Affiliate, as the case may be, was authorized to service the
Purchased Mortgage Loan in the jurisdiction in which such Mortgaged
Property is located at all times when the Company held such Purchased
Mortgage Loan;
(ae) There exist no deficiencies with respect to escrow deposits and
payments, if such are required, for which customary arrangements for
repayment thereof have not been made, and no escrow deposits or
payments of other charges or payments due the Company have been
capitalized under the Mortgage or the related Mortgage Note;
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<PAGE>
(af) There is no obligation on the part of the Company or any other party
to make supplemental payments in addition to those made by the
Mortgagor other than any guaranty agreements delivered to the Initial
Purchaser pursuant to Section 3.3 hereof;
(ag) The origination and collection practices used by the Company or its
Servicing Affiliate, as the case may be, with respect to the Mortgage
Note and Mortgage have been in all respects legal, proper, prudent and
have met customary standards utilized by mortgage lenders in their
commercial mortgage servicing business;
(ah) The Mortgage Note, the Mortgage, the Assignment of Mortgage, the
Assignment of Leases and any other documents required to be delivered
have been delivered to the Purchaser or its designated agent. The
Company is in possession of a complete Mortgage File (or a copy
thereof), except those documents delivered to the Purchaser, and there
are no custodial agreements in effect adversely affecting the right or
ability of the Company to make the deliveries required;
(ai) The Mortgaged Property has adequate rights of access to public ways
and is served by adequate water, sewer, sanitary sewer and storm drain
facilities. All public utilities necessary to the full use and
enjoyment of the Mortgaged Property are located in the public
right-of-way abutting the premises, and all such utilities are
connected so as to served the Mortgaged Property without passing over
other property unless passing through valid easements thereon. All
roads necessary for the full utilization of the Mortgaged Property for
its current purpose have been completed and dedicated to public use
and accepted by all Governmental Authorities;
(aj) Except as set forth in the Environmental Report delivered to the
Purchaser with respect to the Mortgaged Property (a true, correct and
complete copy of which has been provided to the Purchaser by the
Company);
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(i) The Mortgaged Property is in full compliance with all
applicable Environmental Laws, which compliance includes, but is
not limited to the possession by the Mortgagor of all permits and
other governmental authorizations required under applicable
Environmental Laws, and compliance with the terms and conditions
thereof, except where the failure to comply with such laws would
not materially adversely affect the Mortgaged Property or the
condition (financial or otherwise) of the Mortgagor. Neither the
Company, nor, to the Company's best knowledge, the Mortgagor, has
received any communication (written or oral), whether from a
Governmental Authority, citizens group, employee or otherwise,
that alleges that the Mortgaged Property is not in such full
compliance,
(ii) There is no Environmental Claim pending or, to the Company's
best knowledge, threatened against the Mortgagor or against any
Person whose liability for any Environmental Claim the Mortgagor
has retained or may have retained or assumed either contractually
or by operation of law,
(iii) There have been and are no past or present actions,
activities, circumstances, conditions, events or incidents,
including, without limitation, the release, emission, discharge,
presence or disposal of any Hazardous Substance, that could form
the basis of any Environmental Claim against the Mortgagor or
against any Person whose liability for any Environmental Claim
the Mortgagor has or may have retained or assumed either
contractually or by operation of law;
(ak) There are no pending or, to the Company's best knowledge, proposed
special or other assessments for public improvements or otherwise
affecting the Mortgaged Property, nor are there
41
<PAGE>
any contemplated improvements to the Mortgaged Property that may
result in such special or other assessments;
(al) As of the date hereof, the Company is the assignee of the Mortgagor's
interest under the Leases and there are no prior assignments of the
Leases or any portion of the Property Income due and payable or to
become due and payable which are presently outstanding;
(am) The Mortgaged Property is free of structural defects and in good
repair and all building systems contained therein are in good working
order subject to ordinary wear and tear, except as disclosed in the
Engineer's Report delivered as part of the Mortgage File;
(an) Each Lease provides for the tenant to pay a base monthly rent,
percentage rent based on sales (where applicable), and such tenant's
pro rata share of real estate taxes and other operating and
maintenance costs, and contains other provisions customarily included
in commercial leases;
(ao) Each tenant under a Lease is in possession of only that portion of the
Mortgaged Property covered by its Lease. All tenant improvements to be
completed by Mortgagor under the Lease have been completed, the
payment of rent under each Lease has commended, and no Leases contain
any option to purchase, or any right of first refusal to purchase all
or any portion of the Mortgaged Property;
(ap) The Company has no knowledge of any circumstance or condition with
respect to the Purchased Mortgage Loan that can cause such Purchased
Mortgage Loan to become delinquent or adversely affect the value or
marketability of such Purchased Mortgage Loan; and neither this
Agreement nor any statement, report or other document furnished or to
be furnished pursuant to this Agreement (including the Mortgage File)
or in connection with the transaction contemplated hereby contains any
untrue statement of
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fact or omits to state a fact necessary to make the statements
contained herein or therein not misleading;
(aq) Either the Mortgage contains an assignment of leases or an assignment
of rents or there is a separate document providing for such
assignments, either of which creates in favor of the holder thereof a
valid, perfected and enforceable lien of the same priority as the
related Mortgage, in the property and rights described therein. The
Company has the full right to assign to the Initial Purchaser such
assignment of leases and the lien create thereby as described in the
immediately preceding sentence; and
(ar) Except as set forth on the Mortgage Loan Schedule, the Mortgage Loan
contains a provision 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, or the
creation of any lien or other encumbrance on, the related Mortgaged
Property; or (ii) provides that such Mortgage Loan may not be assumed
without the consent of the related mortgagee in connection with any
such sale or transfer; or (iii) requires the consent of the related
mortgagee to the creation of any such lien or other encumbrance on the
related Mortgaged Property; and there is no agreement between the
Company and the Mortgagor waiving any such provision or otherwise
rendering such provision ineffective.
Section 4.2 Company Representations.
The Company hereby represents and warrants to the Purchaser as of the date
hereof and as of each Closing Date:
(a) The Company is a Missouri corporation duly organized, validly
existing, and in good standing under the laws of the State of Missouri
and has all licenses necessary to carry on its business as now being
conducted and is licensed, qualified and in good standing in the
43
Exhibit 99.1B
<PAGE>
MORTGAGE LOAN PURCHASE AGREEMENT
This Mortgage Loan Purchase Agreement (this "Agreement"), is dated and
effective as of March 20, 1997, between ContiTrade Services L.L.C. as seller
(the "Seller") and Morgan Stanley Capital I Inc. as purchaser (the "Purchaser").
The Seller desires to sell, assign, transfer and otherwise convey to the
Purchaser, and the Purchaser desires to purchase, subject to the terms and
conditions set forth below, the multifamily and commercial mortgage loans (the
"Mortgage Loans") identified on the schedule annexed hereto as Exhibit A (the
"Mortgage Loan Schedule").
It is expected that the Mortgage Loans will be transferred, together with
other multifamily and commercial mortgage loans (the "Other Loans") to a trust
fund (the "Trust Fund") to be formed by the Purchaser, beneficial ownership of
which will be evidenced by a series of mortgage pass-through certificates (the
"Certificates"). Certain classes of the Certificates will be rated by Duff &
Phelps Credit Rating Co. and/or Moody's Investors Service Inc. (together, the
"Rating Agencies"). Certain classes of the Certificates (the "Registered
Certificates") will be registered under the Securities Act of 1933, as amended
(the "Securities Act"). The Trust Fund will be created and the Certificates will
be issued pursuant to a pooling and servicing agreement to be dated as of March
1, 1997 (the "Pooling and Servicing Agreement"), among the Purchaser as
depositor, the GMAC Commercial Mortgage Corporation as master servicer (in such
capacity, the "Master Servicer") and as special servicer (in such capacity, the
"Special Servicer"), LaSalle National Bank as trustee (the "Trustee") and ABN
AMRO Bank N.V. as fiscal agent (the "Fiscal Agent"). Capitalized terms not
otherwise defined herein, including without limitation in the Exhibits hereto,
have the meanings assigned to them in the Pooling and Servicing Agreement.
The Purchaser intends to sell the Registered Certificates to Morgan Stanley
& Co. Incorporated (the "Underwriter") pursuant to an underwriting agreement
dated the date hereof (the "Underwriting Agreement"), among the Purchaser and
the Underwriter. The Purchaser intends to sell the remaining Certificates (the
"Non-Registered Certificates") to the Underwriter pursuant to a certificate
purchase agreement dated the date hereof (the "Certificate Purchase Agreement"),
between the Purchaser and the Underwriter.
Now, therefore, in consideration of the premises and the mutual agreements
set forth herein, the parties agree as follows:
SECTION 1. AGREEMENT TO PURCHASE.
The Seller agrees to sell, assign, transfer and otherwise convey to the
Purchaser, and the Purchaser agrees to purchase, the Mortgage Loans. The
purchase and sale of the Mortgage Loans shall take place on March 26, 1997 or
such other date as shall be mutually acceptable to the parties hereto (the
"Closing Date"). As of the close of business on
<PAGE>
March 1, 1997 (the "Cut-off Date"), the Mortgage Loans will have an aggregate
principal balance (the "Aggregate Cut-off Date Balance"), after application of
all payments of principal due thereon on or before such date, whether or not
received, of $220,440,403, subject to a variance of plus or minus 5.0%. The
purchase price (the "Aggregate Purchase Price") for the Mortgage Loans shall be
the dollar amount as set forth in that certain "Flow of Funds" dated as of March
20, 1997, which dollar amount was determined in conformity with the terms of
that certain Letter of Understanding dated February 6, 1997 (the "Letter of
Understanding"), among Morgan Stanley Mortgage Capital Inc., GMAC Commercial
Mortgage Corporation and ContiFinancial. The Aggregate Purchase Price shall be
paid to the Seller by wire transfer of immediately available funds.
SECTION 2. CONVEYANCE OF MORTGAGE LOANS.
(a) Effective as of the Closing Date, subject only to receipt by the Seller
of the Aggregate Purchase Price for the Mortgage Loans referred to in Section 1
hereof, the Seller does hereby sell, transfer, assign, set over and otherwise
convey to the Purchaser, without recourse, all the right, title and interest of
the Seller in and to the Mortgage Loans identified on the Mortgage Loan Schedule
as of such date, including all interest and principal received or receivable by
the Seller on or with respect to the Mortgage Loans after the Cut-off Date,
together with all of the Seller's right, title and interest in and to the
proceeds of any related title, hazard, or other insurance policies and any
escrow, reserve or other comparable accounts related to the Mortgage Loans. The
Purchaser shall be entitled to (and, to the extent received by or on behalf of
the Seller, the Seller shall deliver or cause to be delivered to or at the
direction of the Purchaser or any subsequent owner of the related Mortgage
Loans, including without limitation the Trustee) all scheduled payments of
principal and interest due on the Mortgage Loans after the Cut-off Date, and all
other recoveries of principal and interest collected thereon after the Cut-off
Date. All scheduled payments of principal and interest due thereon on or before
the Cut-off Date and collected after the Cut-off Date shall belong to the
Seller.
(b) In connection with the Seller's assignment pursuant to subsection (a)
above, the Seller shall on or before the Closing Date deliver to and deposit
with, or cause to be delivered to and deposited with, the Trustee (with a copy
to the Master Servicer) the Mortgage File (as described on Exhibit B hereto) for
each Mortgage Loan so assigned. If the Seller cannot so deliver, or cause to be
delivered, as to any Mortgage Loan, the original or a copy of any of the
documents and/or instruments referred to in clauses (ii), (iv), (viii), (xi)(A)
and (xii) of Exhibit B, with (if appropriate) evidence of recording or filing,
as the case may be, thereon, solely because of a delay caused by the public
recording or filing office where such document or instrument has been delivered
for recordation or filing, the delivery requirements of this Section 2(b) shall
be deemed to have been satisfied as to such missing item, and such missing item
shall be deemed to have been included in the related Mortgage File, provided
that the Seller has delivered to the Trustee on or before the Closing Date a
copy of such document or instrument (without evidence of recording or filing
thereon, but certified (which certificate
- 3 -
<PAGE>
may relate to multiple documents and/or instruments) by the Seller to be a true
and complete copy of the original thereof submitted for recording or filing, as
the case may be), and the Seller shall deliver to or at the direction of the
Purchaser (or any subsequent owner of the affected Mortgage Loan, including
without limitation the Trustee), promptly following the receipt thereof, the
original of such missing document or instrument (or a copy thereof) with (if
appropriate) evidence of recording or filing, as the case may be, thereon. If
the Seller cannot so deliver, or cause to be delivered, as to any Mortgage Loan,
the original or a copy of the related lender's title insurance policy referred
to in clause (ix) of Exhibit B solely because such policy has not yet been
issued, the delivery requirements of this Section 2(b) shall be deemed to be
satisfied as to such missing item, and such missing item shall be deemed to have
been included in the related Mortgage File, provided that the Seller has
delivered to the Trustee on or before the Closing Date a commitment for title
insurance "marked-up" at the closing of such Mortgage Loan, and the Seller shall
deliver to or at the direction of the Purchaser (or any subsequent owner of the
affected Mortgage Loan, including without limitation the Trustee), promptly
following the receipt thereof, the original related lender's title insurance
policy (or a copy thereof). In addition, notwithstanding anything to the
contrary contained herein, if there exists with respect to any group of related
cross-collateralized Mortgage Loans only one original of any document referred
to in Exhibit B covering all the Mortgage Loans in such group, then the
inclusion of the original of such document in the Mortgage File for any of the
Mortgage Loans in such group shall be deemed an inclusion of such original in
the Mortgage File for each such Mortgage Loan.
(c) As to each Mortgage Loan, the Seller shall be responsible for all costs
associated with the recording or filing, as the case may be, of each assignment
referred to in clauses (iii) and (v) of Exhibit B and each UCC-2 and UCC-3, if
any, referred to in clause (xi)(B) of Exhibit B; provided that the Seller shall
not be responsible for actually recording or filing any such document or
instrument. If any such document or instrument is lost or returned unrecorded or
unfiled, as the case may be, because of a defect therein, the Seller shall
promptly prepare or cause the preparation of a substitute therefor or cure or
cause the curing of such defect, as the case may be, and shall thereafter
deliver the substitute or corrected document to or at the direction of the
Purchaser (or any subsequent owner of the affected Mortgage Loan, including
without limitation the Trustee) for recording or filing, as appropriate, at the
Seller's expense.
(d) All documents and records in the Seller's possession (or under its
control) relating to the Mortgage Loans that are not required to be a part of a
Mortgage File in accordance with Exhibit B (all such other documents and
records, as to any Mortgage Loan, the "Servicing File"), together with all
escrow payments, reserve funds and other comparable funds in the possession of
the Seller (or under its control) with respect to the Mortgage Loans, shall
(unless they are held by a sub-servicer that will, as of the Closing Date, act
on behalf of the Master Servicer pursuant to a written agreement between such
parties) be delivered by the Seller (or its agent) to the Purchaser (or its
designee) no later than the Closing Date. If a sub-servicer will, as of the
Closing Date, act on behalf of the Master Servicer with respect to any
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Mortgage Loan pursuant to a written agreement between such parties, the Seller
shall deliver a copy of the related Servicing File to the Master Servicer.
(e) The Seller's records will reflect the transfer of the Mortgage Loans to
the Purchaser as a sale.
SECTION 3. EXAMINATION OF MORTGAGE LOAN FILES AND DUE DILIGENCE REVIEW.
The Seller shall reasonably cooperate with any examination of the Mortgage
Files and Servicing Files and any other due diligence with respect to the
Mortgage Loans that may be undertaken by or on behalf of the Purchaser. The fact
that the Purchaser has conducted or has failed to conduct any partial or
complete examination of the Mortgage Files and/or Servicing Files or any other
due diligence with respect to the Mortgage Loans shall not affect the right of
the Purchaser or any of its successors and assigns (including without limitation
the Trustee) to pursue any remedy available in equity or at law for a breach of
the Seller's representations, warranties and covenants set forth in or
contemplated by Section 4.
SECTION 4. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE SELLER.
(a) The Seller hereby makes, as of the date hereof and as of the Closing
Date (or as of such other date specifically provided in the particular
representation or warranty), to and for the benefit of the Purchaser, and its
successors and assigns (including without limitation the Trustee and the holders
of the Certificates), each of the representations and warranties set forth in
Exhibit C, with such changes or modifications as may be permitted or required by
the Rating Agencies.
(b) In addition, the Seller, as of the date hereof and as of the Closing
Date, hereby represents and warrants to, and covenants with, the Purchaser that:
(i) The Seller is a limited liability company duly organized, validly
existing and in good standing under the laws of the State of Delaware. The
Seller has the requisite power and authority and legal right to own the
Mortgage Loans and to transfer and convey the Mortgage Loans to the
Purchaser and has the requisite power and authority and legal right to
execute and deliver, engage in the transactions contemplated by, and
perform and observe the terms and conditions of, this Agreement.
(ii) This Agreement has been duly and validly authorized, executed and
delivered by the Seller, all requisite action by the Seller has been taken
in connection therewith, and (assuming the due authorization, execution and
delivery hereof by the Purchaser) this Agreement constitutes the valid,
legal and binding agreement of the Seller, enforceable against the Seller
in accordance with its terms, except as such enforcement may be
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limited by (A) laws relating to bankruptcy, insolvency, reorganization,
receivership or moratorium, (B) other laws relating to or affecting the
rights of creditors generally, (C) general equity principles (regardless of
whether such enforcement is considered in a proceeding in equity or at law)
or (D) public policy considerations underlying the securities laws to the
extent that such public policy considerations limit the enforceability of
the provisions of this Agreement that purport to provide indemnification
from liabilities under applicable securities laws.
(iii) No consent, approval, authorization or order of, registration or
filing with, or notice to, any governmental authority or court, is
required, under federal or state law, for the execution, delivery and
performance of or compliance by the Seller with this Agreement, or the
consummation by the Seller of any transaction contemplated hereby, other
than (1) the filing or recording of financing statements, instruments of
assignment and other similar documents necessary in connection with
Seller's sale of the Mortgage Loans to the Purchaser, (2) such consents,
approvals, authorizations, qualifications, registrations, filings or
notices as have been obtained or made and (3) where the lack of such
consent, approval, authorization, qualification, registration, filing or
notice would not have a material adverse effect on the performance by the
Seller under this Agreement.
(iv) Neither the transfer of the Mortgage Loans to the Purchaser, nor
the execution, delivery or performance of this Agreement by the Seller,
conflicts or will conflict with, results or will result in a breach of, or
constitutes or will constitute a default under (A) any term or provision of
the Seller's organizational documents, (B) any term or provision of any
material agreement, contract, instrument or indenture, to which the Seller
is a party or which may be applicable to the Seller or any of its assets,
or (C) any law, rule, regulation, order, judgment, writ, injunction or
decree of any court or governmental authority having jurisdiction over the
Seller or its assets.
(v) Any financial statements delivered by the Seller to the Purchaser
fairly present the pertinent results of operations and changes in financial
position for each of the periods covered thereby and the financial position
at the end of each such period of the Seller (or, if applicable, of the
Seller, its parent and any other affiliates covered thereby on a
consolidated basis) and have been prepared in accordance with generally
accepted accounting principles consistently applied throughout the periods
involved, except as set forth in the notes thereto.
(vi) There has been no change in the business, operations, financial
condition, properties or assets of the Seller since the date of the most
recent financial statements of the Seller (or, if applicable, of the
Seller, its parent and any other affiliates covered thereby on a
consolidated basis) delivered to the Purchaser that could have a material
and adverse effect on the ability of the Seller to perform its obligations
under this Agreement.
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(vii) Any financial statements delivered by the Guarantor (as defined
in Section 8) to the Purchaser fairly present the pertinent results of
operations and changes in financial position for each of the periods
covered thereby and the financial position at the end of each such period
of the Guarantor (or, if applicable, of the Guarantor, its parent and any
other affiliates covered thereby on a consolidated basis) and have been
prepared in accordance with generally accepted accounting principles
consistently applied throughout the periods involved, except as set forth
in the notes thereto.
(viii) There has been no change in the business, operations, financial
condition, properties or assets of the Guarantor since the date of the most
recent financial statements of the Guarantor (or, if applicable, of the
Guarantor, its parent and any other affiliates covered thereby on a
consolidated basis) delivered to the Purchaser that could have a material
and adverse effect on the ability of the Guarantor to perform its
obligations under the Guaranty Agreement (as defined in Section 8).
(ix) There are no actions or proceedings against, or investigations
of, the Seller pending or, to the Seller's knowledge, threatened against
the Seller before any court, administrative agency or other tribunal, the
outcome of which could reasonably be expected to adversely affect the
transfer of the Mortgage Loans to the Purchaser or the execution or
delivery by, or enforceability against, the Seller of this Agreement or to
have an effect on the financial condition of the Seller that would
materially and adversely affect the ability of the Seller to perform its
obligations under this Agreement.
(x) No certificate, statement, report or other information furnished
in writing by the Seller to the Purchaser, any affiliate of the Purchaser
or a Rating Agency for use in connection with the purchase of the Mortgage
Loans and the transactions contemplated hereunder contains any untrue
statement of a material fact or omits to state a material fact necessary to
make the certificate, statement, report or other information not
misleading.
(xi) The Seller has not dealt with any broker, investment banker,
agent or other person, except for the Purchaser, the Underwriter or any of
their respective affiliates, that may be entitled to any commission or
compensation in connection with the sale of the Mortgage Loans or the
consummation of any of the other transactions contemplated hereby.
(xii) The transfer of the Mortgage Loans to the Purchaser on the
Closing Date will be treated by the Seller for financial accounting and
reporting purposes as a sale of assets.
(xiii) The transfer, assignment and conveyance of the Mortgage Loans
by the Seller pursuant to this Agreement are not subject to the bulk
transfer or any similar statutory provisions in effect in any relevant
jurisdiction, except such as may have been complied with.
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(xiv) Insofar as it relates to the Mortgage Loans, the related
Mortgaged Properties and/or the related Mortgagors, the information set
forth on the Master Tape (as defined in Section 9) is true and correct in
all material respects.
(xv) The Seller's Information (as defined in Section 9 below) does not
contain any untrue statement of material fact or omit to state a material
fact necessary to make the statements therein, in the light of
circumstances under which they were made, not misleading.
(xvi) The Seller does not believe, nor does it have any reason to
believe, that it cannot perform in all material respects each and every
covenant on its part in this Agreement.
(c) Upon discovery by any of the parties hereto of a breach of any of the
representations and warranties made pursuant to and set forth in subsection (b)
above which materially and adversely affects the interests of the Purchaser or a
breach of any of the representations and warranties made pursuant to subsection
(a) above and set forth in Exhibit C which materially and adversely affects the
value of any Mortgage Loan or the interests therein of the Purchaser or its
successors and assigns (including without limitation the Trustee and the holders
of the Certificates), the party discovering such breach shall give prompt
written notice to the other party hereto.
SECTION 5. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE PURCHASER.
(a) The Purchaser, as of the date hereof and as of the Closing Date, hereby
represents and warrants to, and covenants with, the Seller that:
(i) The Purchaser is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware.
(ii) The Purchaser has full power and authority to acquire the
Mortgage Loans, to execute and deliver this Agreement and to enter into and
consummate all transactions contemplated by this Agreement. The Purchaser
has duly authorized the execution, delivery and performance of this
Agreement and has duly executed and delivered this Agreement. This
Agreement, assuming due authorization, execution and delivery by the
Seller, constitutes the valid and binding obligation of the Purchaser,
enforceable against the Purchaser in accordance with its terms, except as
such enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium and other similar laws affecting the enforcement
of creditors' rights generally and by general principles of equity,
regardless of whether such enforcement is considered in a proceeding in
equity or at law.
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(iii) No consent, approval, authorization or order of, registration or
filing with, or notice to, any governmental authority or court, is
required, under federal or state law, for the execution, delivery and
performance of or compliance by the Purchaser with this Agreement, or the
consummation by the Purchaser of any transaction contemplated hereby, which
has not been obtained or made by the Purchaser.
(iv) The execution, delivery and performance of this Agreement by the
Purchaser will not violate the Purchaser's articles of incorporation or
by-laws or constitute a default under, or result in a breach of, any
material agreement or instrument to which the Purchaser is a party or which
may be applicable to the Purchaser or its assets.
(v) The Purchaser 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, rule,
writ, injunction, or any order or decree of any court, or any order or
regulation of any federal, state or municipal government agency having
jurisdiction over the Purchaser or its assets, which violation could
materially and adversely affect the condition (financial or otherwise) or
the operation of the Purchaser or its assets or could materially and
adversely affect its ability to perform its obligations and duties
hereunder.
(vi) There are no actions or proceedings against, or investigations
of, the Purchaser pending or, to the Purchaser's knowledge, threatened
against the Purchaser before any court, administrative agency or other
tribunal, the outcome of which could reasonably be expected to adversely
affect the transfer of the Mortgage Loans, the issuance of the
Certificates, or the execution, delivery or enforceability of this
Agreement or to have an effect on the financial condition of the Purchaser
that would materially and adversely affect the ability of the Purchaser to
perform its obligation under this Agreement.
(vii) The Purchaser has not dealt with any broker, investment banker,
agent or other person, except for the Seller, the Underwriter or any of
their respective affiliates, that may be entitled to any commission or
compensation in connection with the sale of the Mortgage Loans or the
consummation of any of the other transactions contemplated hereby.
(viii) The Purchaser does not believe, nor does it have any reason to
believe, that it cannot perform in all material respects each and every
covenant on its part in this Agreement.
(b) Upon discovery by any of the parties hereto of a breach of any of the
representations and warranties set forth above which materially and adversely
affects the interests of the Seller, the party discovering such breach shall
give prompt written notice to the other party hereto.
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SECTION 6. REMEDIES FOR BREACH OF REPRESENTATION
(a) The Seller acknowledges that the Purchaser will make for the benefit of
the holders of the Certificates, whether directly or by way of assignment of its
rights hereunder to the Trustee, the representations and warranties set forth on
Exhibit C hereto.
(b) If any document required to be delivered to the Trustee pursuant to
Section 2 is not delivered as and when required, contains information that does
not conform to the corresponding information in the Mortgage Loan Schedule, is
not properly executed or is defective on its face (any such omission,
nonconformity or other defect, a "Document Defect"), or if there is a breach of
any of the representations and warranties required to be made by the Seller
regarding the characteristics of the Mortgage Loans and/or the related Mortgaged
Properties as set forth in Exhibit C hereto, and in either case such Document
Defect or breach materially and adversely affects the interests of the holders
of the Certificates (a "Material Document Defect" and a "Material Breach",
respectively), the party discovering such Material Document Defect or Material
Breach shall (or is required by the terms of the Pooling and Servicing Agreement
to) promptly notify the other parties, and the Seller shall be required to cure
such Material Document Defect or Material Breach in all material respects within
the applicable Permitted Cure Period. If any such Material Document Defect or
Material Breach cannot be corrected or cured in all material respects within the
applicable Permitted Cure Period, the Seller shall, not later than the last day
of such Permitted Cure Period, (i) repurchase the affected Mortgage Loan from
the Purchaser or its assignee at the applicable Purchase Price (as defined in
the Pooling and Servicing Agreement), or (ii) if within the three-month period
commencing on the Closing Date (or within the two-year period commencing on the
Closing Date if the related Mortgage Loan is a "defective obligation" within the
meaning of Section 860(a)(4)(B) (ii) of the Internal Revenue Code of 1986 (the
"Code") and Treasury Regulation Section 1.860G-2(f), at its option, replace such
Mortgage Loan with a Qualifying Substitute Mortgage Loan (as defined in the
Pooling and Servicing Agreement) and pay any corresponding Substitution
Shortfall Amount (also as defined in the Pooling and Servicing Agreement). The
Seller agrees that any such repurchase or substitution shall be completed in
accordance with and subject to the terms and conditions of the Pooling and
Servicing Agreement.
For purposes of the foregoing, and subject to the following paragraph, the
"Permitted Cure Period" applicable to any Material Document Defect or Material
Breach in respect of any Mortgage Loan shall be the 90-day period immediately
following the earlier of the discovery by the Seller or receipt by the Seller of
notice of such Material Document Defect or Material Breach, as the case may be;
provided that if such Material Document Defect or Material Breach, as the case
may be, cannot be corrected or cured in all material respects within such 90-day
period, but it is reasonably likely that such Material Document Defect or
Material Breach, as the case may be, could be corrected or cured within 180 days
of the earlier of discovery by the Seller and receipt by the Seller of notice of
such Material Document Defect or Material Breach, as the case may be, and the
Seller is diligently attempting to effect
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such correction or cure, then the applicable Permitted Cure Period shall, with
the consent of the Purchaser or its assignee (which consent shall not be
unreasonably withheld), be extended for an additional 90 days.
Notwithstanding the preceding provisions of this Section 6(b), if any
Material Document Defect or Material Breach would cause any Mortgage Loan to be
other than a "qualified mortgage" within the meaning of Section 860G(a)(3) of
the Code, then any cure of such Material Document Defect or Material Breach, as
the case may be, as contemplated above must be completed within 90 days of the
Closing Date, and any repurchase or substitution of such Mortgage Loan as
contemplated above must occur within 90 days of the initial discovery of such
Material Document Defect or Material Breach, as the case may be, by any of the
Seller, the Purchaser, the Trustee, the Master Servicer, the Special Servicer or
the Fiscal Agent.
The obligations of the Seller set forth in this Section 6(b) to cure a
Material Document Defect or a Material Breach or repurchase or replace a
defective Mortgage Loan constitute the sole remedies of the Purchaser or its
assignees with respect to a Material Document Defect or Material Breach;
provided, that this limitation shall not in any way limit the Purchaser's rights
or remedies upon breach of any other representation, warranty or covenant by the
Seller set forth in this Agreement (other than those set forth in Exhibit C).
(c) The Pooling and Servicing Agreement shall provide that the Trustee (or
the Master Servicer or the Special Servicer on its behalf) shall give prompt
notice to the Seller of its discovery of any Material Document Defect or
Material Breach .
(d) If the Seller repurchases or replaces any Mortgage Loan pursuant to
this Section 6, the Purchaser or its assignee, following receipt by the Trustee
of the Purchase Price therefor (or, in the case of a substitution, following
receipt by the Trustee of the Mortgage File for the Qualifying Substitute
Mortgage Loan and any corresponding Substitution Shortfall Amount), promptly
shall deliver or cause to be delivered to the Seller all Mortgage Loan documents
with respect to the Mortgage Loan that is being repurchased or replaced, and
each document that constitutes a part of the Mortgage File that was endorsed or
assigned to the Trustee shall be endorsed and assigned to the Seller in the same
manner.
SECTION 7. CLOSING.
The closing of the sale of the Mortgage Loans (the "Closing") shall be held
at the offices of Sidley & Austin, 875 Third Avenue, New York, New York 10022 at
10:00 a.m., New York City time, on the Closing Date.
The Closing shall be subject to each of the following conditions:
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(i) All of the representations and warranties of the Seller specified
herein shall be true and correct as of the Closing Date, and the
Aggregate Cutoff Date Balance shall be within the range permitted by
Section 1 of this Agreement;
(ii) All documents specified in Section 8 of this Agreement (the "Closing
Documents"), in such forms as are agreed upon and acceptable to the
Purchaser, shall be duly executed and delivered by all signatories as
required pursuant to the respective terms thereof;
(iii) The Seller shall have delivered and released to the Trustee the
Purchaser or the Purchaser's designee, as the case may be, all
documents and funds required to be so delivered pursuant to Section 2
hereof;
(iv) The result of any examination of the Mortgage Files and Servicing
Files performed by or on behalf of the Purchaser pursuant to Section
3 hereof shall be satisfactory to the Purchaser in its sole
determination;
(v) All other terms and conditions of this Agreement required to be
complied with on or before the Closing Date shall have been complied
with, and the Seller shall have the ability to comply with all terms
and conditions and perform all duties and obligations required to be
complied with or performed after the Closing Date;
(vi) The Seller shall have paid or agreed to pay all fees, costs and
expenses payable by it to the Purchaser pursuant to this Agreement;
and
(vii) Neither the Underwriting Agreement nor the Certificate Purchase
Agreement shall have been terminated in accordance with its terms.
Both parties agree to use their best efforts to perform their respective
obligations hereunder in a manner that will enable the Purchaser to purchase the
Mortgage Loans on the Closing Date.
SECTION 8. CLOSING DOCUMENTS.
The Closing Documents shall consist of the following:
(i) This Agreement duly executed and delivered by the Purchaser and the
Seller;
(ii) An Officer's Certificate substantially in the form of Exhibit D-1
hereto, executed by the Secretary or an assistant secretary of the
Seller, and
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dated the Closing Date, and upon which the Purchaser and the
Underwriter may rely, attaching thereto as exhibits the
organizational
documents of the Seller;
(iii) A certificate of good standing regarding the Seller from the
Secretary of State for the State of Delaware, dated not earlier than
30 days prior to the Closing Date;
(iv) A certificate of the Seller substantially in the form of Exhibit D-2
hereto, executed by an executive officer or authorized signatory of
the Seller and dated the Closing Date, and upon which the Purchaser
and the Underwriter may rely;
(v) A written opinion of counsel for the Seller, substantially in the
form of Exhibit D-3 hereto and subject to such reasonable
assumptions and qualifications as may be requested by counsel for
the Seller and acceptable to counsel for the Purchaser, dated the
Closing Date and addressed to the Purchaser and the Underwriter;
(vi) Any other opinions of counsel for the Seller required by the Rating
Agencies in connection with the issuance of the Certificates, each
of which shall include the Purchaser and the Underwriter as an
addressee; and
(vii) A letter or letters from Deloitte & Touche, L.L.P., certified public
accountants, dated the dates of the Prospectus Supplement and the
Memorandum (each as defined in Section 9), to the effect that they
have performed certain specified procedures as a result of which
they have determined that certain information of an accounting,
financial or statistical nature set forth in the Prospectus
Supplement and the Memorandum under the captions "Summary-- The
Mortgage Pool," "Description of the Mortgage Pool" and "Risk
Factors-- The Mortgage Loans" agrees with the records of the Seller;
(viii) A guaranty agreement substantially in the form Exhibit E hereto
(the "Guaranty Agreement") duly executed and delivered by
ContiFinancial Corporation (the "Guarantor") in favor of the
Purchaser and the other beneficiaries referred to therein; and
(ix) Such further certificates, opinions and documents as the Purchaser
may reasonably request.
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SECTION 9. INDEMNIFICATION.
(a) The Seller shall indemnify and hold harmless the Purchaser, its
respective officers and directors, and each person, if any, who controls the
Purchaser within the meaning of either Section 15 of the Securities Act or
Section 20 of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), against any and all losses, claims, damages or liabilities, joint or
several, to which they or any of them may become subject under the Securities
Act, the Exchange Act or other federal or state statutory law or regulation, at
common law or otherwise (including without limitation as a result of the
Purchaser's indemnification of the Underwriter), insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) (i) arise out of or are
based upon any untrue statement or alleged untrue statement of a material fact
contained in (A) the Prospectus (including without limitation the diskette
delivered therewith), the Memorandum (including without limitation the diskette
delivered therewith), any Computational Materials or ABS Term Sheets with
respect to the Registered Certificates, or any revision or amendment of any of
the foregoing or supplement to any of the foregoing, (B) any items similar to
Computational Materials and ABS Term Sheets forwarded to prospective investors
in the Non-Registered Certificates, or (C) any other summaries, reports,
documents and written and electronic materials and all other information
furnished or made available by the Seller for review by prospective investors in
the Certificates, or (ii) arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading; but only if and to the extent that any
such untrue statement or alleged untrue statement or omission or alleged
omission is with respect to, or results from an untrue statement or omission
with respect to, information regarding the Mortgage Loans, the related
Mortgagors, the related Mortgaged Properties or the Seller, that is contained in
the Master Tape or in any of the items described in clauses (i) (A), (i) (B)
and/or (i) (C) above (any and all such information, the "Seller's Information");
provided that the indemnification provided by this Section 9 shall not apply to
the extent that such untrue statement or omission was made solely as a result of
an error in the manipulation of, or in any calculations based upon, any true and
accurate loan-by-loan statistical information regarding the Mortgage Loans or
was made solely as a result of an error in aggregating any true and accurate
statistical information regarding the Mortgage Loans with any statistical
information regarding the Other Loans. It is hereby acknowledged and agreed that
the Seller's information includes, but is not limited to, all such information
set forth in Appendix I and Appendix II to the Prospectus Supplement and set
forth in the Prospectus Supplement and the Memorandum under the headings
"Summary -- The Mortgage Pool", "Risk Factors -- The Mortgage Loans" and
"Description of the Mortgage Pool" and, to the extent based upon the
characteristics of the Mortgage Loans, under the headings "Maturity
Considerations" and "Yield Considerations." This indemnity agreement will be in
addition to any liability which the Seller may otherwise have.
For purposes of the foregoing, "Prospectus" shall mean the prospectus dated
March 20, as supplemented by the prospectus supplement dated March 20, 1997 (the
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"Prospectus Supplement"), relating to the Registered Certificates; "Memorandum"
shall mean the private placement memorandum dated March 20, 1997, relating to
the NonRegistered Certificates; "Computational Materials" shall have the meaning
assigned thereto in the no-action letter dated May 20, 1994 issued by the
Division of Corporation Finance of the Securities and Exchange Commission (the
"Commission") to Kidder, Peabody Acceptance Corporation I, Kidder, Peabody & Co.
Incorporated, and Kidder Structured Asset Corporation and the no-action letter
dated May 27, 1994 issued by the Division of Corporation Finance of the
Commission to the Public Securities Association (together, the "Kidder
Letters"); "ABS Term Sheets" shall have the meaning assigned thereto in the
no-action letter dated February 17, 1995 issued by the Division of Corporation
Finance of the Commission to the Public Securities Association (the "PSA Letter"
and, together with the Kidder Letters, the "No-Action Letters"); and "Master
Tape" shall mean the portion, regarding the Mortgage Loans, the related
Mortgagors and the related Mortgaged Properties, of the compilation of
information and data regarding the Mortgage Loans and the Other Loans covered by
the Agreed Upon Procedures Letters dated March 20, 1997 and rendered by Deloitte
& Touche, L.L.P. (a "hard copy" of which Master Tape was initialed on behalf of
the Seller and the Purchaser).
(b) In case any proceeding (including any governmental investigation) shall
be instituted involving any person that may seek indemnity pursuant to Section 9
(a) above, such person (the "indemnified party") shall notify the Seller as the
person against whom such indemnity may be sought (the "indemnifying party") in
writing and the indemnifying party, upon request of the indemnified party, shall
retain counsel reasonably satisfactory to the indemnified party to represent the
indemnified party in such proceeding and shall pay the reasonable fees and
disbursements of such counsel related to such proceeding. The indemnifying party
may, at its option, at any time upon written notice to the indemnified party,
assume the defense of any proceeding and may designate counsel satisfactory to
the indemnified party in connection therewith provided that the counsel so
designated would have no actual or potential conflict of interest in connection
with such representation. In any such proceeding, any indemnified party shall
have the right to retain its own counsel, but the reasonable fees and expenses
of such counsel shall be at the expense of such indemnified party unless (i) the
indemnifying party and the indemnified party shall have mutually agreed to the
retention of such counsel, (ii) the named parties to any such proceeding
(including any impleaded parties) include both the indemnifying party and the
indemnified party and representation of both parties by the same counsel would
be inappropriate due to actual or potential differing interests between them or
(iii) the indemnifying party shall have failed to designate within a reasonable
period of time counsel reasonably satisfactory to the indemnified party. It is
understood that the indemnifying party shall not, in connection with any
proceeding or related proceedings in the same jurisdiction, be liable for the
reasonable fees and expenses of more than one separate firm (in addition to any
local counsel) for all such indemnified parties. Unless it shall assume the
defense of any proceeding, the indemnifying party shall not be liable for any
settlement of any proceeding effected without its written consent (which consent
shall not be unreasonably withheld), but if settled with such consent or if
there shall be a final judgment for the plaintiff, the indemnifying party agrees
to indemnify
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the indemnified party from and against any loss or liability by reason of such
settlement or judgment. If the indemnifying party assumes the defense of any
proceeding, it shall be entitled to settle such proceeding with the consent of
the indemnified party or, if such settlement provides for release of the
indemnified party in connection with all matters relating to the proceeding
which have been asserted against the indemnified party in such proceeding by the
other parties to such settlement, without the consent of the indemnified party.
(c) If the indemnification provided for in this Section 9 is unavailable or
insufficient to hold harmless an indemnified party in respect of any losses,
claims, damages, liabilities or expenses (or actions in respect thereof)
referred to herein, then the indemnifying party, in lieu of indemnifying such
indemnified party, shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages, liabilities or
expenses (or actions in respect thereof) (i) in such proportion as is
appropriate to reflect the relative benefits received by the Seller on the one
hand and the Purchaser and the Underwriter on the other from the sale of the
Mortgage Loans and the offering of the Certificates (to the extent such are
backed by the Mortgage Loans) or (ii) if the allocation provided by clause (i)
is not permitted by applicable law, in such proportion as is appropriate to
reflect not only such relative benefits referred to in clause (i) but also the
relative fault of the Seller on the one hand and the Purchaser and the
Underwriter on the other in connection with the statements or omissions that
resulted in such losses, claims, damages, liabilities or expenses (or actions in
respect thereof), as well as any other relevant equitable considerations. The
relative benefits of the Purchaser and the Underwriter on the one hand and the
Seller on the other shall be deemed to be in such proportion as the (i) total
proceeds from the sale of the Mortgage Loans and the offering of the
Certificates (before deducting expenses) received by the Seller bear to (ii) the
total underwriting discounts and commissions received by the Underwriter from
time to time in negotiated sales of the Certificates (to the extent the
Certificates are backed by the Mortgage Loans). The relative fault of the Seller
on the one hand and of the Purchaser and the Underwriter on the other shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Seller or by the
Purchaser or the Underwriter, and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission.
(d) The parties hereto agree that it would not be just and equitable if
contribution were determined by pro rata allocation or by any other method or
allocation that does not take account of the equitable considerations referred
to in subsection (c) above. The amount paid or payable by an indemnified party
as a result of the losses, claims, damages, liabilities or expenses (or actions
in respect thereof) referred to above shall be deemed to include any legal fees
and disbursements or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any such claim, except where
the indemnified party is required to bear such expenses, which expenses the
indemnifying party shall pay as and when incurred, at the request of the
indemnified party, to the extent that the indemnified party will ultimately be
obligated to pay such expenses. In the event that any
- 16 -
<PAGE>
expenses so paid by the indemnifying party are subsequently determined to not be
required to be borne by the indemnifying party hereunder, the party which
received such payment shall promptly refund the amount so paid to the party
which made such payment. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The remedies provided for in this Section 9 are not exclusive
and shall not limit any rights or remedies that may otherwise be available to
any indemnified party at law or in equity.
(e) The indemnity and contribution agreements contained in this Section 9
shall remain operative and in full force and effect regardless of (i) any
termination of this Agreement, (ii) any investigation made by the Purchaser, any
of its directors or officers, or any person controlling the Purchaser, and (iii)
acceptances of and payment for any of the Mortgage Loans.
SECTION 10. COSTS.
Costs relating to the transactions contemplated hereby shall be borne by
the parties hereto or their respective affiliates in accordance with the Letter
of Understanding.
SECTION 11. NOTICES.
All demands, notices and communications hereunder shall be in writing and
shall be deemed to have been duly given if personally delivered to or mailed, by
registered mail, postage prepaid, by overnight mail or courier service, or
transmitted by facsimile and confirmed by a similar mailed writing, if to the
Purchaser, addressed to Morgan Stanley Capital I Inc., 1585 Broadway, New York,
New York, Attention: Russell Rahbany, facsimile no. (212) 761-0524, with a copy
to Morgan Stanley Capital I Inc., 1585 Broadway, New York, New York, Attention:
Gregory Walker, Esq., facsimile no. (212) 761-8915, or such other address or
facsimile number as may hereafter be furnished to the Seller in writing by the
Purchaser; and if to the Seller, addressed to ContiTrade Services L.L.C. at 277
Park Avenue, 38th Floor, New York, New York 10172, Attention: Chief Counsel,
facsimile no. (212) 207- 2935 or to such other address or facsimile number as
the Seller may designate in writing to the Purchaser.
SECTION 12. THIRD PARTY BENEFICIARIES.
Each of the officers, directors and controlling persons referred to in
Section 9 hereof is an intended third party beneficiary of the covenants and
indemnities of the Seller set forth in Section 9 of this Agreement. It is
acknowledged and agreed that such representations, warranties, covenants and
indemnities may be enforced by or on behalf of any such person or entity against
the Seller to the same extent as if it was a party hereto.
- 17 -
<PAGE>
SECTION 13. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE DELIVERY.
All representations, warranties and agreements contained in this Agreement,
incorporated herein by reference or contained in the certificates of officers of
the Seller submitted pursuant hereto, shall remain operative and in full force
and effect and shall survive delivery of the Mortgage Loans by the Seller to the
Purchaser or its designee.
SECTION 14. SEVERABILITY OF PROVISIONS.
Any part, provision, representation, warranty or covenant of this Agreement
that is prohibited or which is held to be void or unenforceable shall be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof. Any part, provision,
representation, warranty or covenant of this Agreement that is prohibited or
unenforceable or is held to be void or unenforceable in any particular
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
particular jurisdiction shall not invalidate or render unenforceable such
provision in any other jurisdiction. To the extent permitted by applicable law,
the parties hereto waive any provision of law which prohibits or renders void or
unenforceable any provision hereof.
SECTION 15. COUNTERPARTS.
This Agreement may be executed in any number of counterparts, each of which
shall be deemed to be an original, but all of which together shall constitute
one and the same instrument.
SECTION 16. GOVERNING LAW.
THIS AGREEMENT AND THE RIGHTS, DUTIES, OBLIGATIONS AND RESPONSIBILITIES OF
THE PARTIES HERETO SHALL BE GOVERNED IN ACCORDANCE WITH THE INTERNAL LAWS AND
DECISIONS OF THE STATE OF NEW YORK. THE PARTIES HERETO INTEND THAT THE
PROVISIONS OF SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW SHALL APPLY
TO THIS AGREEMENT.
SECTION 17. FURTHER ASSURANCES.
The Seller and the Purchaser agree to execute and deliver such instruments
and take such further actions as the other party may, from time to time,
reasonably request in order to effectuate the purposes and to carry out the
terms of this Agreement.
- 18 -
<PAGE>
SECTION 18. SUCCESSORS AND ASSIGNS.
The rights and obligations of the Seller under this Agreement shall not be
assigned by the Seller without the prior written consent of the Purchaser,
except that any person into which the Seller may be merged or consolidated, or
any corporation or other entity resulting from any merger, conversion or
consolidation to which the Seller is a party, or any person succeeding to all or
substantially all of the business of the Seller, shall be the successor to the
Seller hereunder. The Purchaser has the right to assign its interest under this
Agreement, in whole or in part, as may be required to effect the purposes of the
Pooling and Servicing Agreement, and the assignee shall, to the extent of such
assignment, succeed to the rights and obligations hereunder of the Purchaser. In
addition, any person into which the Purchaser may be merged or consolidated, or
any corporation or other entity resulting from any merger, conversion or
consolidation to which the Purchaser is a party, or any person succeeding to all
or substantially all of the business of the Purchaser, shall be the successor to
the Purchaser hereunder. Subject to the foregoing, this Agreement shall bind and
inure to the benefit of and be enforceable by the Seller and the Purchaser, and
their permitted successors and assigns, and the indemnified parties referred to
in Section 9.
SECTION 19. AMENDMENTS.
No term or provision of this Agreement may be amended, waived, modified or
in any way altered, unless such amendment, waiver, modification or alteration is
in writing and signed by a duly authorized officer of the party against whom
such amendment, waiver, modification or alteration is sought to be enforced.
SECTION 20. WAIVER OF TRIAL BY JURY.
THE PARTIES HERETO HEREBY WAIVE, TO THE FULLEST EXTENT PERMITTED BY LAW,
THE RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM, WHETHER IN
CONTRACT, TORT OR OTHERWISE, RELATING DIRECTLY OR INDIRECTLY TO THIS AGREEMENT
OR THE TRANSACTIONS CONTEMPLATED HEREBY.
[signatures on next page]
- 19 -
<PAGE>
IN WITNESS WHEREOF, the Seller and the Purchaser have caused their names to
be signed hereto by their respective duly authorized officers and/or
representatives as of the date first above written.
CONTITRADE SERVICES L.L.C.
By: /s/ Susan E. O'Donovan
----------------------------
Name: Susan E. O'Donovan
Title: Authorized Signatory
By: /s/ Susan C. Valenti
-----------------------------
Name: Susan C. Valenti
Title: Authorized Signatory
MORGAN STANLEY CAPITAL I INC.
By: /s/ Russell A. Rahbany
-----------------------------
Name: Russell A. Rahbany
Title: Vice President
- 20 -
<PAGE>
EXHIBIT A
Mortgage Loan Schedule
ContiTrade Services L.L.C.
<TABLE>
<CAPTION>
Original Cut-off Note Maturity
ID Street Address City State Zip Code Balance Balance Date Date
================================================================================================================================
<S> <C> <C> <C> <C> <C> <C> <C> <C>
1 442 Hampton Street Stockton CA 95204 $2,524,000 $2,518,939 12/30/96 1/1/07
2 2490 Court Street Redding CA 96001 2,121,000 2,116,747 12/30/96 1/1/07
3 2500 Country Drive Fremont CA 94536 2,035,000 2,030,920 12/30/96 1/1/07
4 2600 Stockton Boulevard Sacramento CA 95817 2,442,000 2,437,104 12/30/96 1/1/07
5 1130 Monaco Court Stockton CA 95207 3,531,000 3,523,920 12/30/96 1/1/07
6 1400 Celeste Drive Modesto CA 95355 3,923,000 3,915,134 12/30/96 1/1/07
7 4635 Georgetown Road Stockton CA 95207 556,000 554,903 12/30/96 1/1/07
8 6600 Eucalyptus Drive Bakersfield CA 93306 1,901,000 1,897,251 12/30/96 1/1/07
12 Various Various Various Various 13,400,000 13,361,851 11/14/96 12/1/16
12A 626 Watervliet Shaker Road Latham NY 12110
12B 1404 Long Pond Road Rochester NY 14626
12C 505 Clubhouse Road Vestal NY 13850
164 09 W.Glenoaks Boulevard Glendale CA 91202 2,332,500 2,329,306 1/31/97 2/1/12
17 201 Allen Avenue Glendale CA 91201 1,567,500 1,565,354 1/31/97 2/1/12
18 12220 Foothill Boulevard Sylmar CA 91342 5,520,000 5,512,441 1/31/97 2/1/12
19 316 South Westlake Avenue Los Angeles CA 90057 2,062,500 2,059,676 1/31/97 2/1/12
22 Various Various Various Various 10,630,000 10,599,737 11/14/96 12/1/16
22A 245 Bassett Road Williamsville NY 14221
22B 111 St.Gregory Court Williamsville NY 14221
23 1640 Lincoln Avenue Vineland NJ 08360 10,000,000 9,979,950 12/31/96 1/1/07
32 46505 South Main Street Rockford IL 61102 8,250,000 8,225,570 9/16/96 10/1/01
49 1400 Folson Street San Francisco CA 94103 6,800,000 6,800,000 2/17/97 3/1/07
50 2817 Albany Post Road Montgomery NY 12549 6,800,000 6,767,936 8/29/96 9/1/06
52 431 Beach 20th Street Far Rockaway NY 11691 6,450,000 6,439,151 12/26/96 1/1/12
54 7510 E. Concord Blvd. Inver Grove Hgts. MN 55075 6,350,000 6,331,767 9/16/96 10/1/03
55 4600 East 26th Street Sioux Falls SD 57103 1,350,000 1,346,159 9/24/96 10/1/03
56 4101 South Western Avenue Sioux Falls SD 57105 2,100,000 2,094,026 9/24/96 10/1/03
57 401 Paramount Place Sioux Falls SD 57104 1,750,000 1,745,021 9/24/96 10/1/03
58 1807 Richard Place Sioux Falls SD 57103 1,000,000 998,306 11/22/96 12/01/03
60 8069 Scyene Circle Dallas TX 75227 6,000,000 5,980,490 10/2/96 11/1/06
64 Highway 67 South Poplar Bluff MO 63901 5,475,000 5,456,821 10/25/96 11/1/06
74 5775 Country View Trail Lakeville MN 55024 4,500,000 4,480,388 9/4/96 10/1/06
76 160 John Street Brooklyn NY 11201 4,400,000 4,383,493 9/20/96 10/1/06
84 4455 117th Street Hawthorne CA 90250 3,800,000 3,800,000 2/14/97 1/1/06
87 1301 Huguenot Road Midlothian VA 23113 3,450,000 3,436,693 11/19/96 12/1/16
95 601 DeKalb Industrial Parkway Atlanta GA 30033 379,500 379,000 1/8/97 2/l/17
96 5410 Hawkinsville Road Macon GA 31206 192,000 191,747 1/8/97 2/1/17
97 3434 Michael Blvd. Mobile AL 36609 618,000 617,186 1/8/97 2/1/17
98 2906 Halls Road Mobile AL 36606 360,000 359,526 1/8/97 2/1/17
99 4141 Troy Highway Montgomery AL 36116 316,500 316,083 1/8/97 2/1/17
100 9380 Mansfield Road Shreveport LA 71118 366,500 366,017 1/8/97 2/1/17
101 505 South McClintock Drive Tempe AZ 85281 387,000 386,490 1/8/97 2/1/17
102 1910 West Prince Road Tucson AZ 85705 345,000 344,546 1/8/97 2/1/17
103 10108 Greenbelt Road Lanham MD 20706 2,900,000 2,891,556 12/9/96 1/1/07
106 429 West Ohio Street Chicago IL 60610 2,800,000 2,784,540 10/8/96 11/1/16
108 2775 Northhaven Road Dallas TX 75229 2,700,000 2,690,358 10/28/96 11/1/14
109 875 W. San Mateo Road Sante Fe NM 87501 2,525,000 2,518,604 11/5/96 12/1/06
112 2310 Via Tercero San Ysidro CA 92173 2,400,000 2,390,409 9/17/96 10/1/06
<CAPTION>
Next
Loan Rem. Loan Change Monthly Serv. Payment
Term Term Type Cap Floor Margin Index Date Rate P&l Fee Due Date
==============================================================================================================
<S> <C> <C> <C> <C> <C> <C>
120 118 Fixed 9.12500% 21,397.78 13.6 First day of month
120 118 Fixed 9.12500% 17,981.26 13.6 First day of month
120 118 Fixed 9.12500% 17,252.17 13.6 First day of month
120 118 Fixed 9.12500% 20,702.61 13.6 First day of month
120 118 Fixed 9.12500% 29,934.85 13.6 First day of month
120 118 Fixed 9.12500% 33,258.12 13.6 First day of month
120 118 Fixed 9.25000% 4,761.48 13.6 First day of month
120 118 Fixed 9.25000% 16,279.82 13.6 First day of month
240 237 Fixed 8.67000% 109,439.86 13.6 First day of month
180 179 Fixed 9.25000% 19,975.11 13.6 First day of month
180 179 Fixed 9.25000% 13,423.79 13.6 First day of month
180 179 Fixed 9.25000% 47,272.28 13.6 First day of month
180 179 Fixed 9.25000% 17,662.88 13.6 First day of month
240 237 Fixed 8.67000% 86,816.84 13.6 First day of month
120 118 Fixed 9.12500% 84,777.27 13.6 First day of month
60 55 Fixed 8.68000% 64,490.76 18.6 First day of month
120 120 Fixed 9.25000% 58,233.97 18.6 First day of month
120 114 Fixed 9.87500% 61,193.47 13.6 First day of month
180 178 Fixed 9.37500% 55,794.00 13.6 First day of month
84 79 Fixed 8.83000% 50,318.73 18.6 First day of month
84 79 Fixed 8.87500% 10,741.21 18.6 First day of month
84 79 Fixed 8.87500% 16,708.54 18.6 First day of month
84 79 Fixed 8.87500% 13,923.79 18.6 First day of month
84 81 Fixed 8.87500% 7,956.45 18.6 First day of month
120 116 Fixed 9.62500% 52,944.09 13.6 First day of month
120 116 Fixed 9.50000% 47,834.89 18.6 First day of month
120 115 Fixed 9.23000% 38,475.10 18.6 First day of month
120 115 Fixed 10.12500% 40,371.20 18.6 First day of month
106 106 Fixed 8.75000% 37,979.05 13.6 First day of month
240 237 Fixed 10.25000% 33,866.70 18.6 First day of month
240 239 Fixed 10.00000% 3,662.26 18.6 First day of month
240 239 Fixed l0.00000% 1,852.84 18.6 First day of month
240 239 Fixed 10.00000% 5,963.83 18.6 First day of month
240 239 Fixed l0.00000% 3,474.08 18.6 First day of month
240 239 Fixed l0.00000% 3,054.29 18.6 First day of month
240 239 Fixed l0.00000% 3,536.80 18.6 First day of month
240 239 Fixed l0.00000% 3,734.63 18.6 First day of month
240 239 Fixed 10.00000% 3,329.32 18.6 First day of month
120 118 Fixed 9.25000% 26,560.14 18.6 First day of month
240 236 Fixed 9.73000% 26,521.64 13.6 First day of month
216 212 Fixcd 9.06250% 22,773.97 18.6 First day of month
120 117 Fixed 9.37500% 21,841.84 18.6 First day of month
120 115 Fixed 9.75000% 21,387.30 18.6 First day of month
</TABLE>
Page 1
<PAGE>
EXHIBIT A
Mortgage Loan Schedule
ContiTrade Services L.L.C.
<TABLE>
<CAPTION>
Original Cut-off Note Maturity
ID Street Address City State Zip Code Balance Balance Date Date
================================================================================================================================
<S> <C> <C> <C> <C> <C> <C> <C> <C>
115 1021 Hopper Avenue Santa Rosa CA 95403 2,350,000 2,340,450 10/1/96 10/1/03
116 150 Malin Drive Wytheville VA 24382 2,350,000 2,340,333 11/19/96 12/1/16
117 30 Park Lane East New Milford CT 06776 2,300,000 2,296,923 1/10/97 2/1/07
118 9705 South Padre Island Drive Corpus Chnsti TX 78418 2,170,000 2,162,944 10/9/96 11/1/06
119 3200 Bernard Street Bakersfield CA 93306 2,175,000 2,161,876 10/10/96 3/1/16
120 7225 South Hulen Street Fort Worth TX 76133 2,281,590 2,058,811 12/1/93 12/1/03
126 6742 Westminster Boulevard Westminster CA 92683 1,820,000 1,817,397 1/7/97 2/1/17
127 939 Allegheny Court Richardson TX 75080 1,800,000 1,797,262 1/17/97 2/1/12
128 4490 E. Lake Mead Boulevard Las Vegas NV 89115 1,750,000 1,732,899 10/9/96 11/1/11
130 25 South Quaker Lane Alexandria VA 22304 1,710,000 1,707,183 12/18/96 1/1/04
132 2633 West Shaw Avenue Fresno CA 93711 1,600,000 1,593,552 9/18/96 10/1/03
133 4515 S. Congress & l34 Sherato Austin TX 78745 1,530,000 1,527,317 12/5/96 1/1/04
135 2855 Fort Worth Avenue Dallas TX 75211 1,500,000 1,495,123 10/30/96 11/1/06
136 36 N. Sycamore Ave. Pasadena CA 91107 1,700,000 1,476,371 9/1/93 9/1/03
139 1190 N. Gloster Street Tupelo MS 38801 1,400,000 1,394,241 11/21/96 12/1/16
142 17324 South Broadway Carson CA 90248 1,300,000 1,297,813 12/23/96 1/1/04
145 1351 South Eastside Loop Tucson AZ 85710 1,225,000 1,222,940 12/4/96 1/1/07
149 382 W. Harden Street Burlington NC 27215 1,000,000 995,615 1/17/96 12/1/16
152 972 W. Atherton Drive Taylorsville UT 84123 950,000 949,204 1/15/97 2/1/07
153 6805 North 27th Avenue Phoenix AZ 85017 900,000 900,000 2/13/97 3/1/07
154 2151 South Shaver Street Pasadena TX 77502 775,000 772,911 11/27/96 12/1/06
155 230 South 500 West Salt Lake City UT 84101 760,000 758,154 11/11/96 12/1/06
157 2111 Holly Hall Houston TX 77054 15,423,406 15,125,403 9/16/94 10/1/04
158 6201 West Olive Avenue Glendale AZ 85302 14,511,141 14,230,839 9/9/94 10/1/04
159 50140 North Benny Court Chesterfield Township MI 48047 7,450,000 7,359,724 7/20/95 8/1/02
Total $220,440,403
<CAPTION>
Next
Loan Rem. Loan Change Monthly Serv. Payment
Term Term Type Cap Floor Margin Index Date Rate P&l Fee Due Date
====================================================================================================================
<S> <C><C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
84 79 Fixed 9.65000% 20,777.44 18.6 First day of month
240 237 Fixcd 9.75000% 22,290.15 18.6 First day of month
120 119 Fixed 9.62500% 20,295.23 13.6 First day of month
120 116 Fixed 9.62500% 19,148.11 18.6 First day of month
232 228 Fixed 9.62500% 20,687.00 18.6 First day of month
120 81 Fixed 9.00000% 17,277.46 18.6 Last day of month
240 239 Fixed 9.36000% 16,798.75 18.6 First day of month
180 179 Fixed 8.87500% 16,050.65 18.6 First day of month
180 176 Fixed 10.00000% 18,805.59 18.6 First day of month
84 82 Fixed 9.50000% 14,940.21 18.6 First day of month
84 79 Fixed 9.70000% 14,202.23 18.6 First day of month
84 82 Fixed 9.12500% 12,970.92 18.6 First day of month
120 116 Fixed 9.62500% 13,236.02 18.6 First day of month
120 78 Fixed 9.00000% 12,389.65 18.6 Last day of month
240 237 Fixed 9.75000% 13,279.24 18.6 First day of month
84 82 Fixed 9.37500% 11,245.30 18.6 First day of month
120 118 Fixed 9.37500% 10,596.54 18.6 First day of month
240 237 Fixed 9.25000% 9,158.67 18.6 First day of month
120 119 Fixed 9.37500% 8,217.72 18.6 First day of month
120 120 Fixed 8.87500% 7,475.88 18.6 First day of month
120 117 Fixed 9.00000% 6,503.77 18.6 First day of month
120 117 Fixed 9.62500% 6,706.25 18.6 First day of month
120 91 Adjustable 11.7500 6.0000 2.7500 LIBOR-6mo 4/1/97 8.53125% 118,932.94 13.6 First day of month
120 91 Adjustable 11.7500 6.0000 2.7500 LIBOR-6mo 4/1/97 8.53125% 111,898.29 13.6 First day of month
84 65 Adjustable 13.7500 8.5000 2.7500 LIBOR-6mo 7/1/97 8.50000% 57,292.86 13.6 First day of month
</TABLE>
Page 2
<PAGE>
EXHIBIT A
MORTGAGE LOAN SCHEDULE
The Mortgage Loan Schedule shall set forth, among other things, the
following information with respect to each Mortgage Loan:
(i) the loan number;
(ii) the street address (including city, state and zip code) of the
related Mortgaged Property;
(iii) the date of the Mortgage Note;
(iv) the Mortgage Rate in effect as of the Cut-off Date and whether such
Mortgage Loan has an adjustable Mortgage Rate;
(v) the original principal balance;
(vi) the Cut-off Date Balance;
(vii) the (A) remaining term to stated maturity and (B) Stated Maturity
Date; and
(viii) the Due Date;
(ix) the amount of the Monthly Payment due on the first Due Date
following the Cut-off Date (exclusive of any component thereof that
is contingent on net cash flow from the related Mortgaged Property);
(x) if such Mortgage Loan has an adjustable Mortgage Rate, the (A)
Index, (B) Gross Margin, (C) first Mortgage Rate adjustment date
following the Cut-off Date and the frequency of Mortgage Rate
adjustments, (D) limitations, if any, on periodic adjustments to
Mortgage Rate, (E) maximum and minimum lifetime Mortgage Rate, if
any, (F) the first Monthly Payment adjustment date following the
Cut-off Date and the frequency of Monthly Payment adjustments; and
(xi) the Master Servicing Fee Rate.
The Mortgage Loan Schedule shall also set forth the Aggregate Cut-off Date
Balance for all of the Mortgage Loans. Such list may be in the form of more than
one list, collectively setting forth all of the information required.
A-1
<PAGE>
EXHIBIT B
THE MORTGAGE FILE
The "Mortgage File" for any Mortgage Loan shall, subject to Section 2(b),
collectively consist of the following documents:
(i) the original Mortgage Note, endorsed by the most recent endorsee
prior to the Trustee or, if none, by the originator, without
recourse, either in blank or to the order of the Trustee in the
following form: "Pay to the order of LaSalle National Bank, as
trustee for the registered holders of Morgan Stanley Capital I Inc.,
Commercial Mortgage Pass-Through Certificates, Series 1997 - C1,
without recourse";
(ii) the original or a copy of the related Mortgage and, if applicable,
the originals or copies of any intervening assignments of such
Mortgage showing a complete chain of assignment from the originator
of the Mortgage Loan to the most recent assignee of record thereof
prior to the Trustee, if any, in each case with evidence of
recording indicated thereon;
(iii) an original assignment of the related Mortgage, in recordable form,
executed by the most recent assignee of record thereof prior to the
Trustee or, if none, by the originator, either in blank or in favor
of the Trustee (in such capacity);
(iv) the original or a copy of the related Assignment of Leases (if such
item is a document separate from the Mortgage) and, if applicable,
the originals or copies of any intervening assignments of such
Assignment of Leases showing a complete chain of assignment from the
originator of the Mortgage Loan to the most recent assignee of
record thereof prior to the Trustee, if any, in each case with
evidence of recording thereon;
(v) an original assignment of any related Assignment of Leases (if such
item is a document separate from the Mortgage), in recordable form,
executed by the most recent assignee of record thereof prior to the
Trustee or, if none, by the originator, either in blank or in favor
of the Trustee (in such capacity), which assignment may be included
as part of the corresponding assignment of Mortgage referred to in
clause (iii) above;
(vi) an original or copy of any related security agreement (if such item
is a document separate from the Mortgage) and, if applicable, the
originals
B-1
<PAGE>
or copies of any intervening assignments of such security agreement
showing a complete chain of assignment from the originator of the
Mortgage Loan to the most recent assignee thereof prior to the
Trustee, if any;
(vii) an original assignment of any related security agreement (if such
item is a document separate from the Mortgage) executed by the most
recent assignee thereof prior to the Trustee or, if none, by the
originator, either in blank or in favor of the Trustee (in such
capacity), which assignment may be included as part of an omnibus
assignment covering other documents relating to the Mortgage Loan
provided that such an omnibus assignment would be effective under
applicable law;
(viii) originals or copies of all assumption, modification, written
assurance and substitution agreements, with evidence of recording
thereon (if appropriate), in those instances where the terms or
provisions of the Mortgage, Mortgage Note or any related security
document have been modified or the Mortgage Loan has been assumed;
(ix) the original or a copy of the lender's title insurance policy issued
in connection with the origination of the Mortgage Loan, together
with all endorsements or riders (or copies thereof) that were issued
with or subsequent to the issuance of such policy, insuring the
priority of the Mortgage as a first lien on the Mortgaged Property;
(x) the original or a copy of any guaranty of the obligations of the
Mortgagor under the Mortgage Loan, together with (A) if applicable,
the originals or copies of any intervening assignments of such
guaranty showing a complete chain of assignment from the originator
of the Mortgage Loan to the most recent assignee thereof prior to
the Trustee, if any, and (B) an original assignment of such guaranty
executed by the most recent assignee thereof prior to the Trustee
or, if none, by the originator (which assignment may be included as
part of an omnibus assignment covering other documents relating to
the Mortgage Loan provided that such an omnibus assignment would be
effective under applicable law);
(xi) (A) file or certified copies of any UCC financing statements and
continuation statements which were filed in order to perfect (and
maintain the perfection of) any security interest held by the
originator of the Mortgage Loan (and each assignee of record prior
to the Trustee) in and to the personalty of the mortgagor at the
Mortgaged Property (in each case with evidence of filing thereon)
and which were in the
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possession of the Seller (or its agent) at the time the Mortgage
Files were delivered to the Trustee and (B) if any such security
interest is perfected and the earlier UCC financing statements and
continuation statements were in the possession of the Seller, a UCC
financing statement executed by the most recent assignee of record
prior to the Trustee or, if none, by the originator, evidencing the
transfer of such security interest, either in blank or in favor of
the Trustee;
(xii) the original or a copy of the power of attorney (with evidence of
recording thereon, if appropriate) granted by the Mortgagor if the
Mortgage, Mortgage Note or other document or instrument referred to
above was signed on behalf of the Mortgagor; and
(xiii) if the Mortgagor has a leasehold interest in the related Mortgaged
Property, the original ground lease or a copy thereof;
provided that whenever the term "Mortgage File" is used to refer to documents
actually received by the Purchaser or the Trustee, such term shall not be deemed
to include such documents and instruments required to be included therein unless
they are actually so received.
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<PAGE>
EXHIBIT C
REPRESENTATIONS AND WARRANTIES OF THE SELLER
REGARDING THE INDIVIDUAL MORTGAGE LOANS
With respect to each Mortgage Loan, the Seller hereby represents and
warrants, as of the date hereinbelow specified or, if no such date is specified,
as of the Closing Date, that:
(i) Ownership of Mortgage Loans. Immediately prior to the transfer thereof
to the Purchaser, the Seller had good and marketable title to, and was the sole
owner and holder of, such Mortgage Loan, free and clear of any and all liens,
encumbrances and other interests on, in or to such Mortgage Loan (other than, in
certain cases, the right of a subservicer to directly service such Mortgage
Loan). Such transfer validly assigns ownership of such Mortgage Loan to the
Purchaser free and clear of any pledge, lien, encumbrance or security interest.
(ii) Authority to Transfer Mortgage Loans. The Seller has full right and
authority to sell, assign and transfer such Mortgage Loan. No provision of the
Mortgage Note, Mortgage or other loan document relating to such Mortgage Loan
prohibits or restricts the Seller's right to assign or transfer such Mortgage
Loan.
(iii) Mortgage Loan Schedule. The information pertaining to such Mortgage
Loan set forth in the Mortgage Loan Schedule was true and correct in all
material respects as of the Cut- off Date.
(iv) Payment Record. Such Mortgage Loan was not as of the Cut-off Date, and
has not been during the twelve-month period prior thereto, 30 days or more
delinquent in respect of any debt service payment required thereunder, without
giving effect to any applicable grace period.
(v) Lien Priority. The related Mortgage constitutes a valid first lien upon
the related Mortgaged Property, including all buildings located thereon and all
fixtures attached thereto, such lien being subject only to (A) the lien of
current real property taxes and assessments not yet due and payable, (B)
covenants, conditions and restrictions, rights of way, easements and other
matters of public record, (C) exceptions and exclusions specifically referred to
in the lender's title insurance policy issued or, as evidenced by a "marked-up"
commitment, to be issued in respect of such Mortgage Loan, and (D) other matters
to which like properties are commonly subject (the exceptions set forth in the
foregoing clauses (A), (B), (C) and (D) collectively, "Permitted Encumbrances").
The Permitted Encumbrances do not materially interfere with the security
intended to be provided by the related Mortgage, the current use or operation of
the related Mortgaged Property or the current ability of the Mortgaged Property
to generate net operating income sufficient to service the Mortgage Loan. If the
Mortgaged Property is operated as a nursing facility, a hospitality property or
a multifamily property, the Mortgage, together with any separate security
agreement, similar agreement and UCC financing statement, if any, establishes
and creates a first priority, perfected security interest, to the extent such
security interest can be perfected by the recordation of a Mortgage and the
filing of a UCC financing
<PAGE>
statement, in all personal property owned by the Mortgagor that is used in, and
is reasonably necessary to, the operation of the related Mortgaged Property.
There exists with respect to such Mortgaged Property an assignment of leases and
rents provision, whether as part of the related Mortgage or as a separate
document or instrument, which establishes and creates a first priority security
interest in and to leases and rents arising in respect of the related Mortgaged
Property, subject only to Permitted Encumbrances.
(vi) Title Insurance. The lien of the related Mortgage is insured by an
ALTA lender's title insurance policy ("Title Policy"), or its equivalent as
adopted in the applicable jurisdiction, issued by a nationally recognized title
insurance company, insuring the originator of such Mortgage Loan, its successors
and assigns, as to the first priority lien of the Mortgage in the original
principal amount of the Mortgage Loan after all advances of principal, subject
only to Permitted Encumbrances (or, if a title insurance policy has not yet been
issued in respect of the Mortgage Loan, a policy meeting the foregoing
description is evidenced by a commitment for title insurance "marked-up" at the
closing of such loan). Each Title Policy (or, if it has yet to be issued, the
coverage to be provided thereby) is in full force and effect, all premiums
thereon have been paid and, to the Seller's knowledge, no material claims have
been made thereunder and no claims have been paid thereunder. No holder of the
related Mortgage has done, by act or omission, anything that would materially
impair the coverage under such Title Policy. Immediately following the transfer
and assignment of the related Mortgage Loan to the Trustee, such Title Policy
(or, if it has yet to be issued, the coverage to be provided thereby) will inure
to the benefit of the Trustee without the consent of or notice to the insurer.
To the Seller's knowledge, the insurer that issued such Title Policy is
qualified to do business in the state in which the related Mortgaged Property is
located.
(vii) No Waivers by Seller of Material Defaults. The Seller has not waived
any material default, breach, violation or event of acceleration existing under
the related Mortgage or Mortgage Note.
(viii) No Offsets, Defenses or Counterclaims. There is no valid offset,
defense or counterclaim to such Mortgage Loan.
(ix) Condition of Property; Condemnation. Except as set forth in any
engineering report prepared in connection with the origination of (or obtained
in connection with or otherwise following the Seller's acquisition of) such
Mortgage Loan, the related Mortgaged Property is, to the Seller's knowledge,
free and clear of any damage that would materially and adversely affect its
value as security for such Mortgage Loan. The Seller has no actual notice of the
commencement of a proceeding for the condemnation of all or any material portion
of the related Mortgaged Property.
(x) Compliance with Usury Laws. Such Mortgage Loan complied with all
applicable usury laws in effect at its date of origination.
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(xi) Full Disbursement of Mortgage Loan Proceeds. The proceeds of such
Mortgage Loan have been fully disbursed and there is no requirement for future
advances thereunder.
(xii) Enforceability. The related Mortgage Note and Mortgage and all other
documents and instruments evidencing, guaranteeing, insuring or otherwise
securing such Mortgage Loan have been duly and properly executed by the parties
thereto, and each is the legal, valid and binding obligation of the maker
thereof (subject to any non-recourse provisions contained in any of the
foregoing agreements and any applicable state anti-deficiency legislation),
enforceable in accordance with its terms, except as such enforcement may be
limited by bankruptcy, insolvency, reorganization, receivership, moratorium or
other laws relating to or affecting the rights of creditors generally and by
general principles of equity (regardless of whether such enforcement is
considered in a proceeding in equity or at law).
(xiii) Insurance. All improvements upon the related Mortgaged Property are
insured against loss by hazards of extended coverage in an amount (subject to a
customary deductible) at least equal to the lesser of the outstanding principal
balance of such Mortgage Loan and 100% of the full insurable replacement cost of
the improvements located on such Mortgaged Property and the related hazard
insurance policy contains appropriate endorsements to avoid the application of
co-insurance and does not permit reduction in insurance proceeds for
depreciation. If any portion of the related Mortgaged Property was, at the time
of the origination of such Mortgage Loan, in an area identified in the Federal
Register by the Flood Emergency Management Agency as having special flood
hazards, and flood insurance was available, a flood insurance policy meeting any
requirements of the then current guidelines of the Federal Insurance
Administration is in effect with a generally acceptable insurance carrier, in an
amount representing coverage not less than the least of (1) the outstanding
principal balance of such Mortgage Loan, (2) the full insurable value of such
Mortgaged Property, (3) the maximum amount of insurance available under the
National Flood Insurance Act of 1968, as amended, and (4) 100% of the
replacement cost of the improvements located on such Mortgaged Property. In
addition, the Mortgage requires the Mortgagor to maintain in respect of the
Mortgaged Property comprehensive general liability insurance in amounts
generally required by commercial mortgage lenders, and at least six months
rental or business interruption insurance, and all such insurance required by
the Mortgage to be maintained is in full force and effect. Each such insurance
policy requires prior notice to the holder of the Mortgage of termination or
cancellation, and no such notice has been received, including any notice of
nonpayment of premiums, that has not been cured.
(xiv) Environmental Condition. The related Mortgaged Property was subject
to one or more environmental site assessments (or an update of a previously
conducted assessment), which was (were) performed on behalf of the Seller, or as
to which the related report was delivered to the Seller in connection with its
origination or acquisition of such Mortgage Loan; and the Seller, having made no
independent inquiry other than reviewing the resulting report(s) and/or
employing an environmental consultant to perform the assessment(s) referenced
herein, has no knowledge of any material and adverse environmental conditions or
circumstance affecting
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<PAGE>
such Mortgaged Property that was not disclosed in the related report(s). The
Seller has not taken any action with respect to such Mortgage Loan or the
related Mortgaged Property that could subject the Purchaser, or its successors
and assigns in respect of the Mortgage Loan, to any liability under the
Comprehensive Environmental Response, Compensation and Liability Act of 1980, as
amended ("CERCLA") or any other applicable federal, state or local environmental
law, and the Seller has not received any actual notice of a material violation
of CERCLA or any applicable federal, state or local environmental law with
respect to the related Mortgaged Property that was not disclosed in the related
report. The related Mortgage requires the Mortgagor to comply with all
applicable federal, state and local environmental laws and regulations.
(xv) No Cross-Collateralization with Other Mortgage Loans. Such Mortgage
Loan is not cross-collateralized with any mortgage loan that will not be
included in the Trust Fund.
(xvi) Waivers and Modifications. The terms of the related Mortgage and the
Mortgage Note have not been impaired, waived, altered or modified in any
material respect, except as specifically set forth in the related Mortgage File.
(xvii) Taxes and Assessments. There are no delinquent taxes, ground rents,
water charges, sewer rents, assessments or other similar outstanding charges
affecting the related Mortgaged Property which are or may become a lien of
priority equal to or higher than the lien of the related Mortgage. For purposes
of this representation and warranty, real property taxes and assessments shall
not be considered unpaid until the date on which interest and/or penalties would
be payable thereon.
(xviii) Mortgagor's Interest in Mortgaged Property. The interest of the
related Mortgagor in the related Mortgaged Property consists of a fee simple
estate in real property.
(xix) Whole Loan. Each Mortgage Loan is a whole loan and not a
participation interest.
(xx) Valid Assignment. The assignment of the related Mortgage referred to
in clause (iii) of Exhibit B constitutes the legal, valid and binding assignment
of such Mortgage from the relevant assignor to the assignee, and the assignment
of the related Assignment of Leases, if any, referred to in clause (v) of
Exhibit B constitutes the legal, valid and binding assignment thereof from the
relevant assignor to the Trustee.
(xxi) Escrows. All escrow deposits relating to such Mortgage Loan that are,
as of the Closing Date, required to be deposited with the mortgagee or its agent
have been so deposited.
(xxii) No Mechanics' or Materialmen's Liens. As of the date of origination
of such Mortgage Loan and, to the actual knowledge of the Seller, as of the
Closing Date, the related
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<PAGE>
Mortgaged Property was and is free and clear of any mechanics' and materialmen's
liens or liens in the nature thereof which create a lien prior to that created
by the related Mortgage.
(xxiii) No Material Encroachments. To the Seller's knowledge (based on
surveys and/or title insurance obtained in connection with the origination of
such Mortgage Loan), as of the date of such origination, no improvement that was
included for the purpose of determining the appraised value of the related
Mortgaged Property at the time of origination of such Mortgage Loan lay outside
the boundaries and building restriction lines of such property to any material
extent (unless affirmatively covered by the title insurance referred to in
paragraph (vi) above), and no improvements on adjoining properties encroached
upon such Mortgaged Property to any material extent. To the Seller's knowledge,
based upon opinions of counsel and/or other due diligence customarily performed
by commercial mortgage lenders, the improvements located on or forming part of
such Mortgaged Property comply in all material respects with applicable zoning
laws and ordinances (except to the extent that they may constitute legal
non-conforming uses).
(xxiv) Originator Authorized. To the extent required under applicable law
as of the Closing Date, the originator of such Mortgage Loan was authorized to
do business in the jurisdiction in which the related Mortgaged Property is
located at all times when it held the Mortgage Loan to the extent necessary to
ensure the enforceability of such Mortgage Loan.
(xxv) No Material Default. To the Seller's knowledge, there exists (A) no
material default, breach or event of acceleration under the related Mortgage or
Mortgage Note, and (B) no event (other than payments due but not yet delinquent)
that, with the passage of time or with notice and the expiration of any grace or
cure period, would constitute such a material default, breach or event of
acceleration; provided, however, that this representation and warranty does not
cover any default, breach or event of acceleration that specifically pertains to
any matter otherwise covered or addressed by any other representation and
warranty made by the Seller therein.
(xxvi) Adjustable Mortgage Rate. If the Mortgage Loan has an adjustable
Mortgage Rate, all of the terms of the related Mortgage Note pertaining to
interest rate adjustments, payment adjustments and adjustments of the principal
balance are enforceable such adjustments will not affect the priority of the
lien of the related Mortgage, and all such adjustments and all calculations made
before the Cut-off Date were made correctly and in full compliance with the
terms of the related Mortgage and Mortgage Note.
(xxvii) No Equity Participation or Contingent Interest. The Mortgage Loan
contains no equity participation by the lender, and does not provide for any
contingent or additional interest in the form of participation in the cash flow
of the related Mortgaged Property, or for negative amortization.
(xxviii) No Advances of Funds. No holder of the Mortgage Loan has, to the
Seller's knowledge, advanced funds or induced, solicited or knowingly received
any advance of
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<PAGE>
funds from a party other than the owner of the related Mortgaged Property,
directly or indirectly, for the payment of any amount required by the Mortgage
Loan.
(xxix) Licenses, Permits, Etc. To the Seller's knowledge, based on due
diligence customarily performed in the origination of comparable mortgage loans
by the Seller, as of the date of origination of the Mortgage Loan, the related
Mortgagor was in possession of all material licenses, permits and authorizations
required by applicable laws for the ownership and operation of the related
Mortgaged Property as it was then operated.
(xxx) Servicing. The servicing and collection practices used with respect
to the Mortgage Loan have complied with applicable law in all material respects
and are consistent with those employed by prudent servicers of comparable
mortgage loans.
(xxxi) Customary Remedies. The related Mortgage or Mortgage Note, together
with applicable state law, contains customary and enforceable provisions
(subject to the exceptions set forth in paragraph (xii)) such as to render the
rights and remedies of the holders thereof adequate for the practical
realization against the related Mortgaged Property of the principal benefits of
the security intended to be provided thereby.
(xxxii) Insurance and Condemnation Proceeds. The related Mortgage provides
that insurance proceeds and condemnation proceeds will be applied either to
restore or repair the Mortgaged Property, or to repay the principal of the
Mortgage Loan or otherwise at the option of the holder of the Mortgage.
(xxxiii) LTV. The gross proceeds of each Mortgage Loan to the related
Mortgagor at origination did not exceed the non-contingent principal amount of
the Mortgage Loan and either: (A) such Mortgage Loan is secured by an interest
in real property having a fair market value (1) at the date the Mortgage Loan
was originated at least equal to 80 percent of the original principal balance of
the Mortgage Loan or (2) at the Closing Date at least equal to 80 percent of the
principal balance of the Mortgage Loan on such date; provided that for purposes
hereof, the fair market value of the real property interest must first be
reduced by (X) the amount of any lien on the real property interest that is
senior to the Mortgage Loan and (Y) a proportionate amount of any lien that is
in parity with the Mortgage Loan (unless such other lien secures a Mortgage Loan
that is cross-collateralized with such Mortgage Loan, in which event the
computation described in clauses (1) and (2) of this paragraph (xxx) shall be
made on a pro rata basis in accordance with the fair market values of the
Mortgaged Properties securing such cross-collateralized Mortgage Loans; or (B)
substantially all the proceeds of such Mortgage Loan were used to acquire,
improve or protect the real property which served as the only security for such
Mortgage Loan (other than a recourse feature or other third party credit
enhancement within the meaning of Treasury Regulations Section
1.860G-2(a)(1)(ii)).
(xxxiv) LTV and Significant Modifications. If the Mortgage Loan was
"significantly modified" prior to the Closing Date so as to result in a taxable
exchange under
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Section 1001 of the Code, it either (A) was modified as a result of the default
or reasonably foreseeable default of such Mortgage Loan or (B) satisfies the
provisions of either clause (A)(1) of paragraph (xxxiii) (substituting the date
of the last such modification for the date the Mortgage Loan was originated) or
clause (A)(2) of paragraph (xxxiii), including the proviso thereto.
(xxxv) Nursing Home Regulation. If the Mortgaged Property is operated as a
nursing home, to the Seller's knowledge (a) the related Mortgagor is in
compliance in all material respects with all federal and state laws applicable
to the use and operation of the related Mortgaged Property and (b) to the extent
the Mortgaged Property participates in Medicare or Medicaid, the facility is in
compliance in all material respects with the requirements for participating in
such programs.
(xxxvi) Litigation. To the Seller's actual knowledge, there are no pending
actions, suits or proceedings by or before any court or governmental authority
against or affecting the related Mortgagor or the related Mortgaged Property
that, if determined adversely to such Mortgagor or Mortgaged Property, would
materially and adversely affect the value of the Mortgaged Property or the
ability of the Mortgagor to pay principal, interest or any other amounts due
under such Mortgage Loan.
(xxxvii) Leasehold Estate. Each Mortgaged Property consists of the related
Mortgagor's fee simple estate in real estate or, if the related Mortgage Loan is
secured in whole or in part by the interest of a Mortgagor as a lessee under a
ground lease of a Mortgaged Property (a "Ground Lease"), by the related
Mortgagor's interest in the Ground Lease but not by the related fee interest in
such Mortgaged Property (the "Fee Interest"):
(i) To the actual knowledge of the Seller, such Ground Lease or a
memorandum thereof has been or will be duly recorded; such Ground
Lease (or the related estoppel letter or lender protection agreement
between the Seller and related lessor) permits the interest of the
lessee thereunder to be encumbered by the related Mortgage; and
there has been no material change in the payment terms of such
Ground Lease since the origination of the related Mortgage Loan,
with the exception of material changes reflected in written
instruments that are a part of the related Mortgage File;
(ii) The lessee's interest in such Ground Lease is not subject to any
liens or encumbrances superior to, or of equal priority with, the
related Mortgage, other than Permitted Encumbrances;
(iii) The Mortgagor's interest in such Ground Lease is assignable to the
Purchaser and its successors and assigns upon notice to, but without
the consent of, the lessor thereunder (or, if such consent is
required, it has been obtained prior to the Closing Date) and, in
the event that it is so assigned,
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<PAGE>
is further assignable by the Purchaser and its successors and
assigns upon notice to, but without the need to obtain the consent
of, such lessor;
(iv) Such Ground Lease is in full force and effect, and the Seller has
received no notice that an event of default has occurred thereunder,
and, to the Seller's actual knowledge, there exists no condition
that, but for the passage of time or the giving of notice, or both,
would result in an event of default under the terms of such Ground
Lease;
(v) Such Ground Lease, or an estoppel letter or other agreement,
requires the lessor under such Ground Lease to give notice of any
default by the lessee to the mortgagee, provided that the mortgagee
has provided the lessor with notice of its lien in accordance with
the provisions of such Ground Lease, and such Ground Lease, or an
estoppel letter or other agreement, further provides that no notice
of termination given under such Ground Lease is effective against
the mortgagee unless a copy has been delivered to the mortgagee;
(vi) A mortgagee is permitted a reasonable opportunity (including, where
necessary, sufficient time to gain possession of the interest of the
lessee under such Ground Lease) to cure any default under such
Ground Lease, which is curable after the receipt of notice of any
such default, before the lessor thereunder may terminate such Ground
Lease;
(vii) Such Ground Lease has an original term (including any extension
options set forth therein) which extends not less than ten years
beyond the Stated Maturity Date of the related Mortgage Loan;
(viii) Under the terms of such Ground Lease and the related Mortgage,
taken together, any related insurance proceeds other than in respect
of a total or substantially total loss or taking, will be applied
either to the repair or restoration of all or part of the related
Mortgaged Property, with the mortgagee or a trustee appointed by it
having the right to hold and disburse such proceeds as the repair or
restoration progresses (except in such cases where a provision
entitling another party to hold and disburse such proceeds would not
be viewed as commercially unreasonable by a prudent commercial
mortgage lender), or to the payment of the outstanding principal
balance of the Mortgage Loan together with any accrued interest
thereon; and
(ix) Such Ground Lease does not impose any restrictions on subletting
which would be viewed, as of the date of origination of the related
Mortgage Loan, as commercially unreasonable by the Seller; and such
Ground Lease
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<PAGE>
contains a covenant that the lessor thereunder is not permitted, in
the absence of an uncured default, to disturb the possession,
interest or quiet enjoyment of any subtenant of the lessee, or in
any manner, which would adversely affect the security provided by
the related Mortgage
(xxxviii) Deed of Trust. If the related Mortgage is a deed of trust, a
trustee, duly qualified under applicable law to serve as such, is properly
designated and serving under such Mortgage.
(xxxix) Lien Releases. Except in cases where either (a) a release of a
portion of the Mortgaged Property was contemplated at origination of the
Mortgage Loan and such portion was not considered material for purposes of
underwriting the Mortgage Loan or (b) release is conditioned upon the
satisfaction of certain underwriting and legal requirements and the payment of a
release price, the related Mortgage Note or Mortgage does not require the holder
thereof to release all or any portion of the Mortgaged Property from the lien of
the related Mortgage except upon payment in full of all amounts due under such
Mortgage Loan.
(xl) Junior Liens. Except for those Mortgage Loans and the related
Mortgaged Properties referred to in the paragraph immediately following these
enumerated representations and warranties and for the two Mortgage Loans secured
by Mortgaged Properties referred to as U-Haul Storage (S. Hulen) (Mortgage Loan
No. 120) and U-Haul Storage (Pasadena) (Mortgage Loan No. 136), the Mortgage
Loan does not permit the related Mortgaged Property to be encumbered by any lien
junior to or of equal priority with the lien of the related Mortgage without the
prior written consent of the holder thereof or the satisfaction of debt service
coverage or similar conditions specified therein.
(xli) Mortgagor Bankruptcy. To the Seller's knowledge, the Mortgagor is not
a debtor in any state or federal bankruptcy or insolvency proceeding.
It is understood and agreed that the representations and warranties set
forth in this Exhibit C shall survive delivery of the respective Mortgage Files
to the Purchaser an/or the Trustee and shall inure to the benefit of the
Purchaser, and its successors and assigns (including without limitation the
Trustee and the holders of the Certificates), notwithstanding any restrictive or
qualified endorsement or assignment. Notwithstanding anything to the contrary in
the foregoing, the fact that the Mortgagors under the Mortgage Loans secured by
properties referred to as Golden State -- Riverdale (Mortgage Loan No. 17),
Golden State -- Glenoaks Convalescent Hospital (Mortgage Loan No. 16), Golden
State -- Sylmar Health & Rehabilitation Center (Mortgage Loan No. 18), Golden
State -- Westlake Convalescent Hospital (Mortgage Loan No. 19), Westwood Hills
Health Care Center (Mortgage Loan No. 64) and Brentwood Place (Mortgage Loan No.
60) are permitted to engage, and do engage, in borrowings secured by their
accounts receivables shall not constitute a breach of any of the foregoing
representations and warranties.
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EXHIBIT D-1
FORM OF CERTIFICATE OF AN OFFICER OF
THE SELLER
CERTIFICATE OF OFFICER OF SELLER
I, _______________, a[n] [Assistant] [Secretary] of ContiFinancial
Corporation, Managing Member of ContiTrade Services L.L.C. (the "Seller"),
hereby certify as follows:
The Seller is a limited liability company duly organized, validly existing
and in good standing under the laws of the State of Delaware.
Attached hereto as Exhibit I are true, correct and complete copies of the
Certificate of Formation and Limited Liability Company Agreement of the Seller,
which Certificate of Formation and Limited Liability Company Agreement are on
the date hereof, and have been at all times, in full force and effect.
To the best of my knowledge, no proceedings looking toward liquidation or
dissolution of the Seller are pending or contemplated.
Each person listed below is and has been the duly elected or appointed, as
the case may be, and qualified officer, representative or authorized signatory
of the Seller and his genuine signature is set forth opposite his name:
NAME OFFICE SIGNATURE
_________________ Authorized Signatory __________________
_________________ Authorized Signatory __________________
Each person listed above who signed, either manually or by facsimile
signature, the Purchase Agreement dated as of March __, 1997 (the "Purchase
Agreement"), between Morgan Stanley Capital I Inc. and the Seller, and any other
document or certificate delivered by or on behalf of the Seller on or before the
date hereof in connection with the transactions contemplated by the Purchase
Agreement, was, at the respective times of such signing and delivery, duly
authorized or appointed to execute such documents in such capacity, and the
signatures of such persons or facsimiles thereof appearing on such documents are
their genuine signatures.
D1-1
<PAGE>
Capitalized terms not otherwise defined herein have the meanings assigned
to them in the Purchase Agreement.
IN WITNESS WHEREOF, the undersigned has executed this certificate as of
March , 1997.
By: ____________________________________________
Name:
Title:[Assistant] Secretary of ContiFinancial
Corporation Managing Member of ContiTrade
Services L.L.C.
I, ________________, an Authorized Signatory, hereby certify that
________________ is a duly elected or appointed, as the case may be, qualified
and acting [Assistant] Secretary of ContiFinancial Corporation, Managing Member
of the Seller, and that the signature appearing above is his/her genuine
signature.
IN WITNESS WHEREOF, the undersigned has executed this certificate as of
March __, 1997.
By: _____________________________
Name:
Title:
D1-2
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EXHIBIT D-2
FORM OF CERTIFICATE OF THE SELLER
CERTIFICATE OF SELLER
In connection with the execution and delivery by ContiTrade Services L.L.C.
(the "Seller") of, and the consummation of the transaction contemplated by, that
certain Mortgage Loan Purchase Agreement, dated as of March ___, 1997 (the
"Purchase Agreement"), between Morgan Stanley Capital I Inc. and the Seller, the
Seller hereby certifies that (i) the representations and warranties of the
Seller in the Purchase Agreement are true and correct in all material respects
at and as of the date hereof with the same effect as if made on the date hereof,
and (ii) the Seller has, in all material respects, complied with all the
agreements and satisfied all the conditions on its part to be performed or
satisfied at or prior to the date hereof. Capitalized terms not otherwise
defined herein have the meanings assigned to them in the Purchase Agreement.
Certified this ___ day of March 1997.
CONTITRADE SERVICES L.L.C.
By: _____________________________
Name:
Title: Authorized Signatory
D2-1
<PAGE>
EXHIBIT D-3
FORM OF OPINION OF COUNSEL TO THE SELLER
March __ , 1997
Morgan Stanley Capital I Inc.
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036-8293
Re: Mortgage Loan Purchase Agreement, dated as of March __, 1997,
between ContiTrade Services L.L.C. and Morgan Stanley Capital
I Inc.
Ladies and Gentlemen:
This opinion is being provided to you by the undersigned, as counsel of
ContiTrade Services L.L.C. (the "Seller"), pursuant to Section 8(e) of the
Mortgage Loan Purchase Agreement, dated as of March ___, 1997 (the "Purchase
Agreement"), between Morgan Stanley Capital I Inc. (the "Purchaser") and the
Seller, relating to the sale by the Seller of certain mortgage loans (the
"Mortgage Loans"). Capitalized terms not otherwise defined herein have the
meanings set assigned to them in the Purchase Agreement
I (or attorneys under my supervision) have examined originals or copies,
certified or otherwise identified to my satisfaction, of such corporate records
of the Seller, certificates of public officials, officers of the Seller and
other persons and other documents, agreements and instruments and have made such
other investigations as I have deemed necessary or appropriate for purposes of
this opinion.
Based upon the foregoing, I am of the opinion that:
1. The Seller is duly organized, validly existing and in good standing as
a limited liability company under the laws of Delaware, with full
power and authority to execute and deliver, engage in the transactions
contemplated by, and perform and observe the terms and conditions of
the Purchase Agreement.
D3-1
<PAGE>
2. The Purchase Agreement has been duly authorized, executed and
delivered by the Seller and, upon due authorization, execution and
delivery by the Purchaser, will constitute a valid, legal and binding
agreement of the Seller, enforceable against the Seller in accordance
with its terms, except as enforceability may be limited by (a)
bankruptcy, insolvency, liquidation, receivership, moratorium,
reorganization or other similar laws relating to or affecting the
enforcement of creditors rights generally, (b) general principles of
equity, whether enforcement is sought in a proceeding in equity or at
law, and (c) public policy considerations underlying the securities
laws, to the extent such public policy considerations limit the
enforceability of the provisions of such agreement that purport to
provide indemnification from securities law liabilities.
3. No consent, approval, authorization or order of any court,
governmental agency or body is required in connection with the
execution, delivery and performance by the Seller of the Purchase
Agreement, except for those consents, approvals, authorizations or
orders that previously have been obtained.
4. The transfer of the Mortgage Loans as provided in the Purchase
Agreement and the fulfillment of the terms of the Purchase Agreement
will not conflict with or result in a violation of the Certificate of
Formation or Limited Liability Company Agreement of the Seller, any
law, rule or regulation applicable to the Seller or its property, or
any agreement or instrument, order, writ, judgment or decree to which
the Seller is a party or is subject.
5. To the best of my knowledge, there are no actions or proceedings
against the Seller pending (with regard to which the Seller has
received service of process ) or overtly threatened in a writing
received by me, before any court, governmental agency or arbitrator
which affect the enforceability of the Purchase Agreement, or which
would draw into question the validity of the Purchase Agreement or any
action taken or to be taken in connection with the Seller's
obligations contemplated therein, or which would materially impair the
Seller's ability to perform under the terms of the Purchase Agreement.
6. Nothing has come to our attention that would lead us to believe that,
insofar as it relates to the characteristics of the Mortgage Loans,
the real properties that secure such or the related borrowers or
relates to the description of the Seller, the Prospectus (other than
any accounting, financial or statistical information included therein,
as to which no opinion is expressed), at the date of the Prospectus
Supplement or at the Closing Date, included or includes an untrue
statement of a material fact or omitted or omits to state
D3-2
<PAGE>
a material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not
misleading.
The opinions expressed herein are limited to the laws of the State of New
York, the federal law of the United States and the Limited Liability Company Act
of the State of Delaware.
This opinion is given to you for your sole benefit, and no other person or
entity is entitled to rely hereon without our express written consent.
Very truly yours,
D3-3
<PAGE>
EXHIBIT E
FORM OF GUARANTY AGREEMENT
================================================================================
CONTIFINANCIAL CORPORATION
Guarantor
in favor of
MORGAN STANLEY CAPITAL I INC.
AND CERTAIN OTHERS
------------------------------
GUARANTY AGREEMENT
Dated as of March 20, 1997
------------------------------
================================================================================
E-1
<PAGE>
Guaranty Agreement (the "Agreement"), dated as of March 20, 1997, from
ContiFinancial Corporation (the "Guarantor") in favor of Morgan Stanley Capital
I Inc. (the "Depositor") and all additional persons and entities (the "Other
Beneficiaries" and, collectively with the Depositor, the "Beneficiaries")
entitled to indemnification under Section 9 of the Mortgage Loan Purchase
Agreement dated as of even date herewith (the Purchase Agreement), between
ContiTrade Services L.L.C. (the "Seller") and the Depositor.
The Depositor requires, as an inducement and a condition precedent to its
entering into the Purchase Agreement with the Seller, that the Guarantor
guarantees certain obligations of the Seller under the Purchase Agreement. The
Guarantor desires that the Depositor enter into the Purchase Agreement and is
willing to enter into this Agreement in order to induce the Depositor to do so.
The Guarantor is a corporation affiliated with the Seller. Capitalized terms
used but not otherwise defined herein shall have the respective meanings
ascribed to such terms in the Purchase Agreement.
Now, therefore, in consideration of the premises and the mutual agreements
set forth herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Guarantor agrees as follows:
ARTICLE I
GUARANTEED OBLIGATIONS
Section 1.1 Obligations Guaranteed. The Guarantor hereby guarantees to the
Depositor and the Other Beneficiaries (a) the timely purchase or replacement of
any Mortgage Loans which the Seller is obligated to repurchase or replace
pursuant to Section 6 of the Purchase Agreement and fails to do so in accordance
therewith, (b) the due and punctual payment, observance and performance of any
and all of the obligations of the Seller pursuant to Section 9 of the Purchase
Agreement, if the Seller fails to pay or perform as required thereunder (the
obligations specified in this clause (b) and the preceding clause (a), as such
may be amended or modified from time to time with the written consent of the
Guarantor, collectively, the "Seller Obligations"), and (c) the timely payment
of costs, expenses (including, without limitation, expenses of enforcement) and
liabilities resulting from the failure of the Seller to satisfy any Seller
Obligation in accordance with the Purchase Agreement; provided that,
notwithstanding anything herein to the contrary, in no event shall the Guarantor
guaranty or otherwise be responsible for any Seller Obligation to the extent
(but only to the extent) that such Seller Obligation has been amended,
rescinded, waived, modified or in any way altered without the written consent of
the Guarantor. It is herein acknowledged that no Seller Obligation may be
amended, rescinded, waived, modified or in any way altered except by writing
signed by the Depositor and the Seller.
Section 1.2 Nature of the Guaranteed Obligations. (a) The Guarantor further
agrees that this Agreement constitutes an absolute, unconditional, irrevocable,
present and continuing guaranty of performance and payment and not of
collection. The Guarantor's obligations hereunder (the "Guaranty Obligations")
are primary, direct, unconditional and completely independent of the obligations
of any other person or entity, and are primary direct obligations of the
Guarantor to the Depositor and the Other Beneficiaries.
E-1
<PAGE>
(b) If any payment by the Seller to any person or entity under any of the
Seller Obligations is rescinded or must be returned by such person or entity for
any reason (including, without limitation, the entry of an order under any
present or future federal or state bankruptcy, insolvency or similar law) the
Guaranty Obligations of the Guarantor hereunder shall be reinstated with respect
to such payment.
(c) None of the Beneficiaries shall have a duty to advise the Guarantor of
information known to it regarding such condition or any such circumstances.
(d) The Guaranty Obligations shall remain in full force and effect until
both (i) satisfaction or performance thereof in full and (ii) the obligations of
the Seller under the Purchase Agreement are paid, observed, performed and
satisfied in full. The Guarantor guarantees and agrees that the Seller
Obligations will be satisfied in accordance with the terms thereof, subject to
the proviso to Section 1.1. The liability of the Guarantor under this Agreement
shall be absolute, unconditional and irrevocable irrespective of:
(i) any lack of validity, legality or enforceability of the Purchase
Agreement.
(ii) the failure of any Beneficiary (i) to assert any claim or demand
not expressly required under the terms of the Purchase Agreement or to
enforce any right or remedy against the Seller under the Purchase
Agreement, or (ii) to exercise any right or remedy against any other
guarantor of, or collateral securing, any of the Seller Obligations;
(iii) subject to the proviso to Section 1.1, any reduction,
limitation, impairment or termination of any of the obligations of the
Seller under the Purchase Agreement for any reason, including any claim of
waiver, release, surrender, alteration or compromise by reason of the
invalidity, illegality, non-genuineness, irregularity, compromise or
unenforceability of, or any other event or occurrence affecting, such
obligations, except as expressly set forth in the Purchase Agreement;
(iv) subject to the proviso to Section 1.1, any amendment to,
rescission, waiver, or other modification of, or any consent to or
departure from, any of the terms of the Purchase Agreement; and
(v) any other circumstance which might otherwise constitute a defense
to or a discharge of the Seller of its obligations under the Purchase
Agreement based upon the bankruptcy or insolvency of the Seller.
provided that, notwithstanding anything to the contrary contained herein, the
Guarantor shall not be required to make a payment hereunder pursuant to the
Guaranty Obligations to the extent that there exists a valid defense, set-off,
discharge, right of release or equitable right of limitation or liability under
the Purchase Agreement to which the Seller is rightfully entitled and that does
not arise out of the bankruptcy or insolvency of the Seller.
E-2
<PAGE>
Section 1.3 Certain Waivers of the Guarantor. The Guarantor hereby waives:
(a) promptness, diligence, notice of acceptance and any other notice
with respect to any of the Seller Obligations and this Agreement, except
notices to the Guarantor specifically provided in this Agreement, and
(b) any requirement that the Depositor or any Other Beneficiary
secure, perfect or insure any security interest or exhaust any right or
take any action against the Guarantor, the Seller or any other person or
entity (including, without limitation, any other obligor or guarantor) or
any collateral securing the Seller Obligations.
Section 1.4 Remedies and Waivers. No remedy herein conferred upon or
reserved to any Beneficiary is intended to be exclusive of any other available
remedy or remedies, but each and every such remedy shall be cumulative and shall
be in addition to every other remedy given under this Agreement or now or
hereafter existing at law or in equity or by statute. No waiver of any of the
provisions of this Agreement shall: (a) be valid unless evidenced by a writing
executed by each party (whether the Guarantor or a Beneficiary) to be bound
thereby, (b) constitute or be deemed to constitute a waiver of any other
provision of this Agreement or any provisions of the Purchase Agreement (whether
or not similar), or (c) constitute or be deemed to constitute a continuing
waiver unless otherwise expressly provided. No delay on the part of any
Beneficiary in exercising any right or remedy hereunder shall operate as a
waiver thereof, nor shall any single or partial exercise of any power or right
preclude other or further exercise thereof or the exercise of any other right or
remedy. No notice to or demand on the Guarantor in any case shall entitle it to
any other or further notice or demand in the same or similar circumstances
except to the extent expressly required by the Purchase Agreement.
Section 1.5 No Set-off by Guarantor. No set-off, abatement, recoupment,
counterclaim, reduction or diminution of a Guaranty Obligation, or any defense
of any kind or nature which the Guarantor has or may have with respect to a
Guaranty Obligation (other than the complete fulfillment, performance or
satisfaction of such Guaranty Obligation) shall be available hereunder to the
Guarantor against the Depositor or any Other Beneficiary; provided, however,
that the Guarantor shall be entitled to, except to the extent it arises out of
the bankruptcy or insolvency of the Seller, any right of set-off, abatement,
recoupment, counterclaim, reduction or diminution of any Seller Obligation, or
any equitable defense of any kind or nature to which the Seller is entitled with
respect to any Seller Obligation.
Section 1.6 Binding Nature of Certain Adjudications. The Guarantor shall be
conclusively bound by the final non-appealable adjudication in any action or
proceeding, legal or otherwise, involving any controversy arising under, in
connection with, or in any way relating to, any of the Seller Obligations, and
by a final judgment, award or decree entered therein, provided, in any case,
that the Guarantor shall have had the right, or shall have been given the
opportunity, to participate in such action or proceeding and shall have been
given written notice of such action or proceeding in time to exercise such right
or avail itself of such opportunity.
E-3
<PAGE>
Section 1.7 Costs. The Guarantor agrees to indemnify the Depositor and each
of the Other Beneficiaries for, and shall pay, all costs, expenses and fees,
including all reasonable attorneys' fees and expenses, which may be incurred by
any Beneficiary in enforcing or attempting to enforce a valid claim under this
Agreement following any default on the part of the Guarantor hereunder, whether
the same shall be enforced by suit or otherwise.
Section 1.8 Interest. If the Guarantor shall fail to make in immediately
available funds any payment required to be made hereunder when due, the
Guarantor shall pay interest on the amount of such payment from and including
the date due to the date of payment at an annual rate equal to two percentage
points above the "Federal funds effective rate" as published on Reuters Screen
118, as such "Federal funds effective rate" may change from time to time.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE GUARANTOR
Section 2.1 Representations and Warranties of the Guarantor. The Guarantor
represents and warrants that:
(a) The Guarantor is a corporation duly organized, validly existing and in
good standing under the laws of the State of Delaware. The Guarantor has the
full power and authority, corporate or otherwise, to guaranty the Seller
Obligations and has the power, authority, franchises and licenses (i) to own its
properties and assets and to carry on and conduct its business and (ii) to
execute, enter into and deliver this Agreement and to perform all of its
obligations hereunder. The execution, delivery and performance of this Agreement
by the Guarantor have been duly authorized by all necessary corporate,
shareholder or other action, and this Agreement has been duly and validly
executed and delivered by the Guarantor and is legal, valid and binding on and
enforceable against the Guarantor in accordance with its terms except as such
enforceability may be subject to applicable bankruptcy, insolvency and similar
laws affecting creditors' rights generally and to general principles of equity.
Any requisite consents of third parties to the execution and delivery of this
Agreement and the performance of the obligations or transactions contemplated
hereby have been obtained.
(b) Neither the execution or delivery of this Agreement, nor the
consummation of the transactions contemplated hereby, nor the compliance with or
performance of the terms and conditions of this Agreement by the Guarantor is
prevented by, limited by, conflicts with or will result in a breach or violation
of or a default under the terms, conditions or provisions of (i) its certificate
of incorporation or by-laws, (ii) any material mortgage, security agreement,
indenture, loan agreement or other agreement or instrument to which the
Guarantor is a party or by which it is bound or (iii) any provision of law, any
order of any court or administrative agency or any rule or regulation applicable
to the Guarantor or its business. As of the date hereof, the Guarantor is not in
default under or in violation of any of its material obligations under any
material contract, agreement or undertaking to which it is a party or by which
it is bound.
(c) As of the date hereof, there is no action, proceeding or investigation
pending with regard to which the Guarantor has received service of process or,
to the Guarantor's
E-4
<PAGE>
knowledge, threatened against the Guarantor before any court or administrative
agency that, in the reasonable and good faith judgment of the Guarantor, may (i)
materially and adversely affect the ability of the Guarantor to perform its
obligations under this Agreement, (ii) result in any material adverse change in
the business, properties, assets or financial condition of the Guarantor, or
(iii) adversely affect the enforceability of this Agreement.
(d) As of the date hereof, the Guarantor is the owner, directly or
indirectly, of 100% of the issued and outstanding membership interests of the
Seller.
ARTICLE III
MISCELLANEOUS
Section 3.1 Obligations Arise on Delivery of the Mortgage Loans. The
Guaranty Obligations hereunder shall arise absolutely and unconditionally
effective as of the Closing Date or, insofar as the Guaranty Obligations relate
to Section 9 of the Purchase Agreement, effective as of the date hereof.
Section 3.2 Survival. All warranties, representations, covenants and
obligations made by the Guarantor herein shall be deemed to have been relied
upon by the Depositor and shall survive the delivery to the Beneficiaries of
this Agreement, regardless of any investigations made by or on behalf of any
Beneficiary, until such time as the Seller Obligations shall have been
discharged pursuant to the Purchase Agreement and the Guaranty Obligations shall
have been discharged pursuant to this Agreement.
Section 3.3 Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the Guarantor, the Depositor and the Other
Beneficiaries and upon the respective successors, assigns, estates, heirs,
executors and administrators of the Guarantor, the Depositor and the Other
Beneficiaries; provided, however, that, except as contemplated by the next two
sentences, (a) the Guarantor may not assign or delegate any of its obligations
hereunder without the prior written consent of the Depositor and each Other
Beneficiary, or their respective successors and assigns, which consent shall not
be unreasonably withheld so long as (i) the then current net worth of the
assignee is no less than the then current net worth of the Guarantor and (ii)
the assignee makes the representations and warranties set forth in Sections
2.1(a), (b) and (c) (with such reasonable modifications as the circumstances
require, none of which modifications materially and adversely affect the
Beneficiaries), and (b) each Beneficiary shall be entitled to assign its
respective rights hereunder only to an affiliate. If the Depositor assigns to
any party any of its rights under the Purchase Agreement in respect of any
Seller Obligations in accordance with the Purchase Agreement, it may also assign
to the same party its rights hereunder in respect of the corresponding Guaranty
Obligations. In addition, any entity into which the Guarantor or any Beneficiary
may be merged or consolidated, or any entity resulting from any merger,
conversion or consolidation to which the Guarantor or any Beneficiary is a
party, or any person succeeding to all or substantially all of the business of
the Guarantor or any Beneficiary, shall be the successor hereunder to the
Guarantor or such Beneficiary, as the case may be.
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<PAGE>
Section 3.4 Notices. All notices, certificates, demands or other
communications hereunder shall be sufficiently given and shall be deemed given
when mailed by registered or certified mail, return receipt requested, postage
prepaid, addressed as follows:
(a) If to the Guarantor:
ContiFinancial Corporation
277 Park Avenue
New York, New York 10172
Attention: Chief Counsel
(b) If to the Depositor:
Morgan Stanley Capital I Inc.
1585 Broadway
New York, New York 10036
Attention: Russell Rahbany
The Guarantor and the Depositor each may, by notice given hereunder,
designate any further or different addresses to which subsequent notices,
certificates, demands or communications shall be sent.
Section 3.5 Entire Agreement. This Agreement constitutes the entire
agreement and supersedes all prior and contemporaneous agreements,
understandings, negotiations and discussions, whether oral or written, of the
parties with respect to the subject matter hereof except as specifically set
forth or incorporated herein.
Section 3.6 Amendments, Changes and Modifications. No term or provision of
this Agreement may be amended, waived, changed, modified, altered, released or
terminated in any manner unless such amendment, waiver, change, modification,
alteration release or termination is in writing and signed by the party (whether
the Guarantor or a Beneficiary) against whom such amendment, waiver, change,
modification, alteration, release or termination is sought to be enforced.
Section 3.7 Severability. The invalidity or unenforceability of any one or
more phrases, sentences, paragraphs or Sections in this Agreement shall not
affect the validity or enforceability of the remaining portions of this
Agreement or any part thereof.
Section 3.8 Governing Law. This Agreement and the rights, duties,
obligations and responsibilities of the Guarantor shall be governed in
accordance with the internal laws and decisions of the State of New York. The
Guarantor and the Beneficiaries intend that the provisions of Section 5-1401 of
the New York General Obligations Law shall apply to this Agreement.
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<PAGE>
Section 3.9 Headings; Interpretation. Section and paragraph headings are
not to be considered part of this Agreement, are included solely for convenience
and are not intended to be full or accurate descriptions of the contents
thereof. Sections and paragraphs mentioned by number only are the respective
sections and paragraphs of this Agreement. The use of the terms "herein",
"hereunder", "hereof", and like terms shall be deemed to refer to this entire
Agreement and not merely to the particular provision in which the term is
contained, unless the context clearly indicates otherwise.
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<PAGE>
IN WITNESS WHEREOF, the Guarantor has caused this Agreement to be duly
executed and delivered, all as of the date first above written.
CONTIFINANCIAL CORPORATION
By: __________________________________
Name:
Title:
By: __________________________________
Name:
Title:
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Exhibit 99.1C
<PAGE>
MORTGAGE LOAN PURCHASE AGREEMENT
This Mortgage Loan Purchase Agreement (this "Agreement"), is dated and
effective as of March 20, 1997, between GMAC Commercial Mortgage Corporation as
seller (the "Seller") and Morgan Stanley Capital I Inc. as purchaser (the
"Purchaser").
The Seller desires to sell, assign, transfer and otherwise convey to the
Purchaser, and the Purchaser desires to purchase, subject to the terms and
conditions set forth below, the multifamily and commercial mortgage loans (the
"Mortgage Loans") identified on the schedule annexed hereto as Exhibit A (the
"Mortgage Loan Schedule").
It is expected that the Mortgage Loans will be transferred, together with
other multifamily and commercial mortgage loans (the "Other Loans") to a trust
fund (the "Trust Fund") to be formed by the Purchaser, beneficial ownership of
which will be evidenced by a series of mortgage pass-through certificates (the
"Certificates"). Certain classes of the Certificates will be rated by Duff &
Phelps Credit Rating Co. ("DCR") and Moody's Investors Service Inc. ("Moody's"
and, together with DCR, the "Rating Agencies"). Certain classes of the
Certificates (the "Registered Certificates") will be registered under the
Securities Act of 1933, as amended (the "Securities Act"). The Trust Fund will
be created and the Certificates will be issued pursuant to a pooling and
servicing agreement to be dated as of March 1, 1997 (the "Pooling and Servicing
Agreement"), among the Purchaser as depositor, the Seller as master servicer and
as special servicer, LaSalle National Bank as trustee (the "Trustee") and ABN
AMRO Bank N.V. as fiscal agent (the "Fiscal Agent"). Capitalized terms not
otherwise defined herein, including without limitation in the Exhibits hereto,
have the meanings assigned to them in the Pooling and Servicing Agreement.
The Purchaser intends to sell the Registered Certificates to Morgan Stanley
& Co. Incorporated (the "Underwriter") pursuant to an underwriting agreement
dated the date hereof (the "Underwriting Agreement"), among the Purchaser and
the Underwriter. The Purchaser intends to sell the remaining Certificates (the
"Non-Registered Certificates") to the Underwriter pursuant to a certificate
purchase agreement dated the date hereof (the "Certificate Purchase Agreement"),
between the Purchaser and the Underwriter.
It is a condition to the Purchaser's acquisition of the Mortgage Loans
that, unless the Purchaser or the Underwriter agree otherwise, the Seller will
purchase from the Underwriter the classes of Non-Registered Certificates that
are designated as the Class H and Class J Certificates at the price set forth in
the trade ticket dated March 20, 1997, from the Underwriter to the Seller.
Now, therefore, in consideration of the premises and the mutual agreements
set forth herein, the parties agree as follows:
<PAGE>
SECTION 1. AGREEMENT TO PURCHASE.
The Seller agrees to sell, assign, transfer and otherwise convey to the
Purchaser, and the Purchaser agrees to purchase, the Mortgage Loans. The
purchase and sale of the Mortgage Loans shall take place on March 26, 1997 or
such other date as shall be mutually acceptable to the parties hereto (the
"Closing Date"). As of the close of business on March 1, 1997 (the "Cut-off
Date"), the Mortgage Loans will have an aggregate principal balance (the
"Aggregate Cut-off Date Balance"), after application of all payments of
principal due thereon on or before such date, whether or not received, of
$223,431,545, subject to a variance of plus or minus 5%. The purchase price (the
"Aggregate Purchase Price") for the Mortgage Loans shall be the dollar amount
determined as described in that certain "Flow of Funds" dated as of March 20,
1997 and in conformity with the terms of that certain Letter of Understanding
dated February 6, 1997 (the "Letter of Understanding"), among Morgan Stanley
Mortgage Capital Inc., ContiFinancial and the Seller. The Aggregate Purchase
Price shall be paid to the Seller on the Closing Date by wire transfer of
immediately available funds in accordance with the written instructions given to
the Purchaser by the Seller at least two (2) business days prior to the Closing
Date.
SECTION 2. CONVEYANCE OF MORTGAGE LOANS.
a. Effective as of the Closing Date, subject only to receipt and acceptance
by the Seller on the Closing Date of the Aggregate Purchase Price for the
Mortgage Loans referred to in Section 1 hereof, the Seller does hereby sell,
transfer, assign, set over and otherwise convey to the Purchaser, without
recourse, all the right, title and interest of the Seller in and to the Mortgage
Loans identified on the Mortgage Loan Schedule as of such date, including all
interest and principal received or receivable by the Seller on or with respect
to the Mortgage Loans after the Cut-off Date, together with all of the Seller's
right, title and interest in and to the proceeds of any related title, hazard,
or other insurance policies and any escrow, reserve or other comparable accounts
related to the Mortgage Loans. The Purchaser shall be entitled to (and, to the
extent received by or on behalf of the Seller, the Seller shall deliver or cause
to be delivered to or at the direction of the Purchaser or any subsequent owner
of the related Mortgage Loan including without limitation the Trustee) all
scheduled payments of principal and interest due on the Mortgage Loans after the
Cut-off Date, and all other recoveries of principal and interest collected
thereon after the Cut-off Date; provided that all scheduled payments of
principal and interest due thereon on or before the Cut-off Date and collected
after the Cut-off Date shall belong to the Seller.
b. In connection with the Seller's assignment pursuant to subsection (a)
above, the Seller shall on or before the Closing Date deliver to and deposit
with, or cause to be delivered to and deposited with, the Trustee (with a copy
to the Master Servicer) the Mortgage File (as described on Exhibit B hereto) for
each Mortgage Loan so assigned. If the Seller cannot so deliver, or cause to be
delivered, as to any Mortgage Loan, the original or a copy of any of the
documents and/or instruments referred to in clauses (ii), (iv), (viii), (xi)(A)
- 3 -
<PAGE>
and (xii) of Exhibit B, with evidence of recording or filing, as the case may
be, thereon, solely because of a delay caused by the public recording or filing
office where such document or instrument has been delivered for recordation or
filing, the delivery requirements of this Section 2(b) shall be deemed to have
been satisfied as to such missing item, and such missing item shall be deemed to
have been included in the related Mortgage File, provided that the Seller has
delivered to the Trustee on or before the Closing Date a copy of such document
or instrument (without evidence of recording or filing thereon, but certified
(which certificate may relate to multiple documents and/or instruments) by the
Seller to be a true and complete copy of the original thereof submitted for
recording or filing, as the case may be), and the Seller shall deliver to or at
the direction of the Purchaser (or any subsequent owner of the affected Mortgage
Loan, including without limitation the Trustee), promptly following the receipt
thereof, the original of such missing document or instrument (or a copy thereof)
with evidence of recording or filing, as the case may be, thereon. If the Seller
cannot so deliver, or cause to be delivered, as to any Mortgage Loan, the
original or a copy of the related lender's title insurance policy referred to in
clause (ix) of Exhibit B solely because such policy has not yet been issued, the
delivery requirements of this Section 2(b) shall be deemed to be satisfied as to
such missing item, and such missing item shall be deemed to have been included
in the related Mortgage File, provided that the Seller has delivered to the
Trustee on or before the Closing Date a commitment for title insurance
"marked-up" at the closing of such Mortgage Loan, and the Seller shall deliver
to or at the direction of the Purchaser (or any subsequent owner of the affected
Mortgage Loan, including without limitation the Trustee), promptly following the
receipt thereof, the original related lender's title insurance policy (or a copy
thereof). In addition, notwithstanding anything to the contrary contained
herein, if there exists with respect to any group of related
cross-collateralized Mortgage Loans only one original of any document referred
to in Exhibit B covering all the Mortgage Loans in such group, then the
inclusion of the original of such document in the Mortgage File for any of the
Mortgage Loans in such group shall be deemed an inclusion of such original in
the Mortgage File for each such Mortgage Loan.
c. As to each Mortgage Loan, the Seller shall be responsible for all costs
associated with the recording or filing, as the case may be, of each assignment
referred to in clauses (iii) and (v) of Exhibit B and each UCC-2 and UCC-3, if
any, referred to in clause (xi)(B) of Exhibit B; provided that the Seller shall
not be responsible for actually recording or filing any such document or
instrument. If any such document or instrument is lost or returned unrecorded or
unfiled, as the case may be, because of a defect therein, the Seller shall
promptly prepare or cause the preparation of a substitute therefor or cure or
cause the curing of such defect, as the case may be, and shall thereafter
deliver the substitute or corrected document to or at the direction of the
Purchaser (or any subsequent owner of the affected Mortgage Loan, including
without limitation the Trustee) for recording or filing, as appropriate, at the
Seller's expense.
d. All documents and records in the Seller's possession (or under its
control) relating to the Mortgage Loans that are not required to be a part of a
Mortgage File in
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accordance with Exhibit B (all such other documents and records, as to any
Mortgage Loan, the "Servicing File"), together with all escrow payments, reserve
funds and other comparable funds in the possession of the Seller (or under its
control) with respect to the Mortgage Loans, shall (unless they are held by a
sub-servicer that will, as of the Closing Date, act on behalf of the Master
Servicer pursuant to a written agreement between such parties) be delivered by
the Seller (or its agent) to the Purchaser (or its designee) no later than the
Closing Date. If a sub-servicer will, as of the Closing Date, act on behalf of
the Master Servicer with respect to any Mortgage Loan pursuant to a written
agreement between such parties, the Seller shall deliver a copy of the related
Servicing File to the Master Servicer.
e. The Seller's records will reflect the transfer of the Mortgage Loans to
the Purchaser as a sale.
SECTION 3. EXAMINATION OF MORTGAGE LOAN FILES AND DUE DILIGENCE REVIEW.
The Seller shall reasonably cooperate with any examination of the Mortgage
Files and Servicing Files and any other due diligence with respect to the
Mortgage Loans that may be undertaken by or on behalf of the Purchaser. The fact
that the Purchaser has conducted or has failed to conduct any partial or
complete examination of the Mortgage Files and/or Servicing Files or any other
due diligence with respect to the Mortgage Loans shall not affect the right of
the Purchaser or any of its successors and assigns (including without limitation
the Trustee) to pursue any remedy available in equity or at law for a breach of
the Seller's representations, warranties and covenants set forth in or
contemplated by Section 4.
SECTION 4. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE SELLER.
a. The Seller hereby makes, as of the date hereof and as of the Closing
Date (or as of such other date specifically provided in the particular
representation or warranty), to and for the benefit of the Purchaser, and its
successors and assigns (including without limitation the Trustee and the holders
of the Certificates), each of the representations and warranties set forth in
Exhibit C, with such changes or modifications as may be permitted or required by
the Rating Agencies.
b. In addition, the Seller, as of the date hereof and as of the Closing
Date, hereby represents and warrants to, and covenants with, the Purchaser that:
i. The Seller is a corporation duly organized, validly existing and in
good standing under the laws of the State of California. The Seller has the
requisite power and authority and legal right to own the Mortgage Loans and
to transfer and convey the Mortgage Loans to the Purchaser and has the
requisite power and authority and legal right to execute and
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deliver, engage in the transactions contemplated by, and perform and
observe the terms and conditions of, this Agreement.
ii. This Agreement has been duly and validly authorized, executed and
delivered by the Seller, all requisite action by the Seller has been taken
in connection therewith, and (assuming the due authorization, execution and
delivery hereof by the Purchaser) this Agreement constitutes the valid,
legal and binding agreement of the Seller, enforceable against the Seller
in accordance with its terms, except as such enforcement may be limited by
(A) laws relating to bankruptcy, insolvency, reorganization, receivership
or moratorium, (B) other laws relating to or affecting the rights of
creditors generally, (C) general equity principles (regardless of whether
such enforcement is considered in a proceeding in equity or at law) or (D)
public policy considerations underlying the securities laws to the extent
that such public policy considerations limit the enforceability of the
provisions of this Agreement that purport to provide indemnification from
liabilities under applicable securities laws.
iii. No consent, approval, authorization or order of, registration or
filing with, or notice to, any governmental authority or court, is
required, under federal or state law, for the execution, delivery and
performance of or compliance by the Seller with this Agreement, or the
consummation by the Seller of any transaction contemplated hereby, other
than (1) the filing or recording of financing statements, instruments of
assignment and other similar documents necessary in connection with
Seller's sale of the Mortgage Loans to the Purchaser, (2) such consents,
approvals, authorizations, qualifications, registrations, filings or
notices as have been obtained or made and (3) where the lack of such
consent, approval, authorization, qualification, registration, filing or
notice would not have a material adverse effect on the performance by the
Seller under this Agreement.
iv. Neither the transfer of the Mortgage Loans to the Purchaser, nor
the execution, delivery or performance of this Agreement by the Seller,
conflicts or will conflict with, results or will result in a breach of, or
constitutes or will constitute a violation of or default under (A) any term
or provision of the Seller's organizational documents, (B) any term or
provision of any material agreement, contract, instrument or indenture, to
which the Seller is a party or which may be applicable to the Seller or any
of its assets, or (C) any law, rule, regulation, order, judgment, writ,
injunction or decree of any court or governmental authority having
jurisdiction over the Seller or its assets, which conflict, breach,
violation or default could materially and adversely affect the condition
(financial or otherwise) or the operation of the Seller or its assets or
could materially and adversely affect its ability to perform its
obligations and duties hereunder.
v. Any financial statements delivered by the Seller to the Purchaser
fairly present the pertinent results of operations and changes in financial
position for each of the periods covered thereby and the financial position
at the end of each such period of the
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Seller and have been prepared in accordance with generally accepted
accounting principles consistently applied throughout the periods involved,
except as set forth in the notes thereto.
vi. There has been no change in the business, operations, financial
condition, properties or assets of the Seller since the date of the
Seller's most recent financial statements delivered to the Purchaser that
could have a material and adverse effect on the ability of the Seller to
perform its obligations under this Agreement.
vii. There are no actions or proceedings against, or investigations
of, the Seller pending or, to the Seller's knowledge, threatened against
the Seller before any court, administrative agency or other tribunal, the
outcome of which could reasonably be expected to adversely affect the
transfer of the Mortgage Loans to the Purchaser or the execution or
delivery by, or enforceability against, the Seller of this Agreement or to
have an effect on the financial condition of the Seller that would
materially and adversely affect the ability of the Seller to perform its
obligations under this Agreement.
viii. The Seller has not dealt with any broker, investment banker,
agent or other person, except for the Purchaser, the Underwriter or any of
their respective affiliates, that may be entitled to any commission or
compensation in connection with the sale of the Mortgage Loans.
ix. The transfer of the Mortgage Loans to the Purchaser on the Closing
Date will be treated by the Seller for financial accounting and reporting
purposes as a sale of assets.
x. The transfer, assignment and conveyance of the Mortgage Loans by
the Seller pursuant to this Agreement are not subject to the bulk transfer
or any similar statutory provisions in effect in any relevant jurisdiction,
except such as may have been complied with.
xi. Insofar as it relates to the Mortgage Loans, the related Mortgaged
Properties and/or the related Mortgagors, the information set forth on the
Master Tape (as defined in Section 9) is true and correct in all material
respects.
xii. Insofar as it relates to the Mortgage Loans, the related
Mortgaged Properties, the related Mortgagors and/or the Seller, the
information set forth (A) in the Prospectus Supplement and the Memorandum
(each as defined in Section 9) under the headings "Summary--The Mortgage
Pool", "Risk Factors--The Mortgage Loans" and "Description of the Mortgage
Pool" and (B) on Appendix II to the Prospectus Supplement and, to the
extent consistent therewith, on the Diskette, does not contain any untrue
statement of a material fact or omit to state a material fact necessary to
make the statements therein, in the light of the circumstances under which
they were made, not misleading; provided that no representation or warranty
is made as to the accuracy of any such information that represents
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an aggregation of, or the result of any calculations based upon, the
information set forth on the Master Tape. Insofar as it relates to other
mortgage loans owned or serviced by the Seller, the information set forth
in the Prospectus Supplement and the Memorandum under the headings
"Description of the Mortgage Pool--The Sellers--GMACCM" and "Servicing of
the Mortgage Loans--GMAC Commercial Mortgage Corporation", does not contain
any untrue statement of a material fact or omit to state a material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading.
xiii. The Seller does not believe, nor does it have any reason to
believe, that it cannot perform in all material respects each and every
covenant on its part in this Agreement.
c. Upon discovery by any of the parties hereto of a breach of any of the
representations and warranties made pursuant to and set forth in subsection (b)
above which materially and adversely affects the interests of the Purchaser or a
breach of any of the representations and warranties made pursuant to subsection
(a) above and set forth in Exhibit C which materially and adversely affects the
value of any Mortgage Loan or the interests therein of the Purchaser or its
successors and assigns (including without limitation the Trustee and the holders
of the Certificates), the party discovering such breach shall give prompt
written notice to the other party hereto.
SECTION 5. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE PURCHASER.
a. The Purchaser, as of the date hereof and as of the Closing Date, hereby
represents and warrants to, and covenants with, the Seller that:
i. The Purchaser is a corporation duly organized, validly existing and
in good standing under the laws of the State of Delaware.
ii. The Purchaser has full power and authority to acquire the Mortgage
Loans, to execute and deliver this Agreement and to enter into and
consummate all transactions contemplated by this Agreement. The Purchaser
has duly authorized the execution, delivery and performance of this
Agreement and has duly executed and delivered this Agreement. This
Agreement, assuming due authorization, execution and delivery by the
Seller, constitutes the valid and binding obligation of the Purchaser,
enforceable against the Purchaser in accordance with its terms, except as
such enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium and other similar laws affecting the enforcement
of creditors' rights generally and by general principles of equity,
regardless of whether such enforcement is considered in a proceeding in
equity or at law.
iii. No consent, approval, authorization or order of, registration or
filing with, or notice to, any governmental authority or court, is
required, under federal or
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state law, for the execution, delivery and performance of or compliance by
the Purchaser with this Agreement, or the consummation by the Purchaser of
any transaction contemplated hereby, which has not been obtained or made by
the Purchaser.
iv. The execution, delivery and performance of this Agreement by the
Purchaser will not violate the Purchaser's articles of incorporation or
by-laws or constitute a default under, or result in a breach of, any
material agreement or instrument to which the Purchaser is a party or which
may be applicable to the Purchaser or its assets.
v. The Purchaser 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, rule,
writ, injunction, or any order or decree of any court, or any order or
regulation of any federal, state or municipal government agency having
jurisdiction over the Purchaser or its assets, which violation could
materially and adversely affect the condition (financial or otherwise) or
the operation of the Purchaser or its assets or could materially and
adversely affect its ability to perform its obligations and duties
hereunder.
vi. There are no actions or proceedings against, or investigations of,
the Purchaser pending or, to the Purchaser's knowledge, threatened against
the Purchaser before any court, administrative agency or other tribunal,
the outcome of which could reasonably be expected to adversely affect the
transfer of the Mortgage Loans, the issuance of the Certificates, or the
execution, delivery or enforceability of this Agreement or to have an
effect on the financial condition of the Purchaser that would materially
and adversely affect the ability of the Purchaser to perform its obligation
under this Agreement.
vii. The Purchaser does not believe, nor does it have any reason to
believe, that it cannot perform in all material respects each and every
covenant on its part in this Agreement.
b. Upon discovery by any of the parties hereto of a breach of any of the
representations and warranties set forth above which materially and adversely
affects the interests of the Seller, the party discovering such breach shall
give prompt written notice to the other party hereto.
SECTION 6. REMEDIES FOR BREACH OF REPRESENTATION
a. The Seller acknowledges that the Purchaser will make for
the benefit of the holders of the Certificates, whether directly or by way of
assignment of its rights hereunder to the Trustee, the representations and
warranties set forth on Exhibit C hereto.
b. If any document required to be delivered to the Trustee pursuant to
Section 2 is not delivered as and when required, contains information that does
not conform to
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the corresponding information in the Mortgage Loan Schedule, is not properly
executed or is defective on its face (any such omission, nonconformity or other
defect, a "Document Defect"), or if there is a breach of any of the
representations and warranties required to be made by the Seller regarding the
characteristics of the Mortgage Loans and/or the related Mortgaged Properties as
set forth in Exhibit C hereto, and in either case such Document Defect or breach
materially and adversely affects the interests of the holders of the
Certificates (a "Material Document Defect" and a "Material Breach",
respectively), the party discovering such Material Document Defect or Material
Breach shall (or is required by the terms of the Pooling and Servicing Agreement
to) promptly notify the other parties, and the Seller shall be required to cure
such Material Document Defect or Material Breach in all material respects within
the applicable Permitted Cure Period. If any such Material Document Defect or
Material Breach cannot be corrected or cured in all material respects within the
applicable Permitted Cure Period, the Seller shall, not later than the last day
of such Permitted Cure Period, (i) repurchase the affected Mortgage Loan from
the Purchaser or its assignee at the applicable Purchase Price (as defined in
the Pooling and Servicing Agreement), or (ii) if within the three-month period
commencing on the Closing Date (or within the two-year period commencing on the
Closing Date if the related Mortgage Loan is a "defective obligation" within the
meaning of Section 860(a)(4)(B) (ii) of the Internal Revenue Code of 1986 (the
"Code") and Treasury Regulation Section 1.860G-2(f), at its option, replace such
Mortgage Loan with a Qualifying Substitute Mortgage Loan (as defined in the
Pooling and Servicing Agreement) and pay any corresponding Substitution
Shortfall Amount (also as defined in the Pooling and Servicing Agreement). The
Seller agrees that any such repurchase or substitution shall be completed in
accordance with and subject to the terms and conditions of the Pooling and
Servicing Agreement.
In addition, if any Mortgage Loan is secured by a Mortgage that does not
constitute a valid first lien upon the related Mortgaged Property, including all
buildings located thereon and all fixtures attached thereto, such lien being
subject only to (A) the lien of current real property taxes and assessments not
yet due and payable, (B) covenants, conditions and restrictions, rights of way,
easements and other matters of public record, (C) exceptions and exclusions
specifically referred to in the lender's title insurance policy issued or, as
evidenced by a "marked-up" commitment, to be issued in respect of such Mortgage
Loan and (D) other matters to which like properties are commonly subject (the
exceptions set forth in the foregoing clauses (A), (B), (C) and (D)
collectively, "Permitted Encumbrances"), or if the insurer that issued the Title
Policy referred to in clause (vi) of Exhibit C hereto in respect of any Mortgage
Loan was not qualified to do business in the state in which the related
Mortgaged Property is located, and in either case such failure materially and
adversely affects the interests of holders of Certificates (any such failure
that materially and adversely affects the interests of holders of Certificates,
also a "Material Breach"), the Seller shall be required to cure such Material
Breach in all material respects within the applicable Permitted Cure Period. If
any such Material Breach cannot be corrected or cured in all material respects
within the applicable Permitted Cure Period, the Seller shall, not later than
the last day of such Permitted Cure Period, (i) repurchase the affected Mortgage
Loan from the Purchaser or its
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assignee at the applicable Purchase Price or (ii) if within the three-month
period commencing on the Closing Date (or within the two-year period commencing
on the Closing Date if the related Mortgage Loan is a "defective obligation"
within the meaning of Section 860(a)(4)(B)(ii) of the Code and Treasury
Regulation Section 1.860G-2(f), at its option, replace such Mortgage Loan with a
Qualifying Substitute Mortgage Loan and pay any corresponding Substitution
Shortfall Amount. The Seller agrees that any such repurchase or substitution
shall be completed in accordance with and subject to the terms and conditions of
the Pooling and Servicing Agreement.
For purposes of the foregoing, and subject to the following paragraph, the
"Permitted Cure Period" applicable to any Material Document Defect or Material
Breach in respect of any Mortgage Loan shall be the 90-day period immediately
following the earlier of the discovery by the Seller or receipt by the Seller of
notice of such Material Document Defect or Material Breach, as the case may be;
provided that if such Material Document Defect or Material Breach, as the case
may be, cannot be corrected or cured in all material respects within such 90-day
period, but it is reasonably likely that such Material Document Defect or
Material Breach, as the case may be, could be corrected or cured within 180 days
of the earlier of discovery by the Seller and receipt by the Seller of notice of
such Material Document Defect or Material Breach, as the case may be, and the
Seller is diligently attempting to effect such correction or cure, then the
applicable Permitted Cure Period shall, with the consent of the Purchaser or its
assignee (which consent shall not be unreasonably withheld), be extended for an
additional 90 days.
Notwithstanding the preceding provisions of this Section 6(b), if any
Material Document Defect or Material Breach would cause any Mortgage Loan to be
other than a "qualified mortgage" within the meaning of Section 860G(a)(3) of
the Code, then any cure of such Material Document Defect or Material Breach, as
the case may be, as contemplated above must be completed within 90 days of the
Closing Date, and any repurchase or substitution of such Mortgage Loan as
contemplated above must occur within 90 days of the initial discovery of such
Material Document Defect or Material Breach, as the case may be, by any of the
Seller, the Purchaser, the Trustee, the Master Servicer, the Special Servicer or
the Fiscal Agent.
The obligations of the Seller set forth in this Section 6(b) to cure a
Material Document Defect or a Material Breach or repurchase or replace a
defective Mortgage Loan constitute the sole remedies of the Purchaser or its
assignees with respect to a Material Document Defect or Material Breach;
provided, that this limitation shall not in any way limit the Purchaser's rights
or remedies upon breach of any other representation, warranty or covenant by the
Seller set forth in this Agreement (other than those set forth in Exhibit C).
c. The Purchaser shall cause the Pooling and Servicing Agreement to provide
that the Trustee (or the Master Servicer or the Special Servicer on its behalf)
shall give
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prompt notice to the Seller of its discovery of any Material Document Defect or
Material Breach .
d. If the Seller repurchases or replaces any Mortgage Loan pursuant to this
Section 6, the Purchaser or its assignee, following receipt by the Trustee of
the Purchase Price therefor (or, in the case of a substitution, following
receipt by the Trustee of the Mortgage File for the Qualifying Substitute
Mortgage Loan and any corresponding Substitution Shortfall Amount), promptly
shall deliver or cause to be delivered to the Seller all Mortgage Loan documents
with respect to the Mortgage Loan that is being repurchased or replaced, and
each document that constitutes a part of the Mortgage File that was endorsed or
assigned to the Trustee shall be endorsed and assigned to the Seller in the same
manner.
SECTION 7. CLOSING.
The closing of the sale of the Mortgage Loans (the "Closing") shall be held
at the offices of Sidley & Austin, 875 Third Avenue, New York, New York 10022 at
10:00 a.m., New York City time, on the Closing Date.
The Closing shall be subject to each of the following conditions:
i. All of the representations and warranties of the Seller and the
Purchaser specified herein shall be true and correct as of the
Closing Date, and the Aggregate Cut-off Date Balance shall be
within the range permitted by Section 1 of this Agreement;
ii. All documents specified in Section 8 of this Agreement (the
"Closing Documents"), in such forms as are agreed upon and
acceptable to the Purchaser, shall be duly executed and delivered
by all signatories as required pursuant to the respective terms
thereof;
iii. The Seller shall have delivered and released to the Trustee, the
Purchaser or the Purchaser's designee, as the case may be, all
documents and funds required to be so delivered pursuant to Section
2 hereof;
iv. The result of any examination of the Mortgage Files and Servicing
Files performed by or on behalf of the Purchaser pursuant to
Section 3 hereof shall be satisfactory to the Purchaser in its sole
determination;
v. The Aggregate Purchase Price shall have been paid as provided in
Section 2;
vi. All other terms and conditions of this Agreement required to be
complied with on or before the Closing Date shall have been
complied
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with, and the Seller shall have the ability to comply with all
terms and conditions and perform all duties and obligations
required to be complied with or performed after the Closing Date;
vii. The Seller shall have paid or agreed to pay all fees, costs and
expenses payable by it to the Purchaser pursuant to this Agreement;
viii. Unless the Purchaser or the Underwriter agrees otherwise, the
Seller shall have purchased from the Underwriter the Non-Registered
Certificates that are designated as the Class H and Class J
Certificates at the price set forth in the trade ticket dated March
20, 1997, from the Underwriter to the Seller; and
ix. Neither the Underwriting Agreement nor the Certificate Purchase
Agreement shall have been terminated in accordance with its terms.
Both parties agree to use their best efforts to perform their respective
obligations hereunder in a manner that will enable the Purchaser to purchase the
Mortgage Loans on the Closing Date.
SECTION 8. CLOSING DOCUMENTS.
The Closing Documents shall consist of the following:
i. This Agreement duly executed and delivered by the Purchaser and the
Seller;
ii. An Officer's Certificate substantially in the form of Exhibit D-1
hereto, executed by the Secretary or an assistant secretary of the
Seller, and dated the Closing Date, and upon which the Purchaser
and the Underwriter may rely, attaching thereto as exhibits the
organizational documents of the Seller and a resolution from the
Seller's board of directors authorizing the transactions
contemplated hereby;
iii. A certificate of good standing regarding the Seller from the
Secretary of State for the State of California, dated not earlier
than 30 days prior to the Closing Date;
iv. A certificate of the Seller substantially in the form of Exhibit
D-2 hereto, executed by an executive officer or authorized
signatory of the Seller and dated the Closing Date, and upon which
the Purchaser and the Underwriter may rely;
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v. Written opinions of counsel for the Seller, substantially in the
form of Exhibits D-3A and D-3B hereto and subject to such
reasonable assumptions and qualifications as may be requested by
counsel for the Seller and acceptable to counsel for the Purchaser,
each dated the Closing Date and addressed to the Purchaser and the
Underwriter;
vi. Any other opinions of counsel for the Seller required by the Rating
Agencies in connection with the issuance of the Certificates, each
of which shall include the Purchaser and the Underwriter as an
addressee; and
vii. A letter or letters obtained by the Purchaser and the Seller, among
others, from Deloitte & Touche, L.L.P., certified public
accountants, dated the dates of the Prospectus Supplement and the
Memorandum (each as defined in Section 9), to the effect that they
have performed certain specified procedures as a result of which
they have determined that certain information of an accounting,
financial or statistical nature set forth in the Prospectus
Supplement and the Memorandum under the captions "Summary-- The
Mortgage Pool," "Description of the Mortgage Pool" and "Risk
Factors-- The Mortgage Loans" agrees with the records of the
Seller;
viii. A confidentiality agreement executed by the Seller and the
Purchaser relating to the Seller's purchase of certain of the
Non-Registered Certificates, substantially in the form of Exhibit E
hereto; and
ix. Such further certificates, opinions and documents as the Purchaser
may reasonably request.
SECTION 9. INDEMNIFICATION.
a. The Seller shall indemnify and hold harmless the Purchaser, its
respective officers and directors, and each person, if any, who controls the
Purchaser within the meaning of either Section 15 of the Securities Act or
Section 20 of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), against any and all losses, claims, damages or liabilities, joint or
several, to which they or any of them may become subject under the Securities
Act, the Exchange Act or other federal or state statutory law or regulation, at
common law or otherwise (including without limitation as a result of the
Purchaser's indemnification of the Underwriter), insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) (i) arise out of or are
based upon any untrue statement or alleged untrue statement of a material fact
contained in (A) the Prospectus Supplement, the Memorandum, the Diskette or,
insofar as they are required to be filed as part of the Registration Statement
pursuant to the No-Action Letters, any Computational Materials or
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ABS Term Sheets with respect to the Registered Certificates, or in any revision
or amendment of or supplement to any of the foregoing or (B) any items similar
to Computational Materials and ABS Term Sheets forwarded to prospective
investors in the Non-Registered Certificates, or (ii) arise out of or are based
upon the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading; but only if and
to the extent that (I) any such untrue statement or alleged untrue statement or
omission or alleged omission arises out of or is based upon an untrue statement
or omission with respect to the Mortgage Loans, the related Mortgagors and/or
the related Mortgaged Properties contained in the Master Tape (it being herein
acknowledged that the Master Tape was used to prepare the Prospectus Supplement
including without limitation Appendix I and Appendix II thereto, the Memorandum,
the Diskette, the Computational Materials and ABS Term Sheets with respect to
the Registered Certificates and any items similar to Computational Materials and
ABS Term Sheets forwarded to prospective investors in the Non-Registered
Certificates), (II) any such untrue statement or alleged untrue statement or
omission or alleged omission is with respect to, or arises out of or is based
upon an untrue statement or omission with respect to, the information regarding
the Mortgage Loans, the related Mortgagors, the related Mortgaged Properties
and/or the Seller set forth (X) in the Prospectus Supplement and the Memorandum
under the headings "Summary--The Mortgage Pool", "Risk Factors--The Mortgage
Loans" and "Description of the Mortgage Pool" and (Y) on Appendix II to the
Prospectus Supplement and, to the extent consistent therewith, on the Diskette,
(III) any such untrue statement or alleged untrue statement or omission or
alleged omission is with respect to, or arises out of or is based upon an untrue
statement or omission with respect to, the information regarding other mortgage
loans owned or serviced by the Seller set forth in the Prospectus Supplement and
the Memorandum under the headings "Description of the Mortgage Pool--The
Sellers--GMACCM" and "Servicing of the Mortgage Loans--GMAC Commercial Mortgage
Corporation", or (iv) any such untrue statement or alleged untrue statement or
omission or alleged omission arises out of or is based upon a breach of the
representations and warranties of the Seller set forth in or made pursuant to
Section 4; provided that the indemnification provided by this Section 9 shall
not apply to the extent that such untrue statement or omission was made as a
result of an error in the manipulation of, or in any calculations based upon, or
in any aggregation of the information regarding the Mortgage Loans, the related
Mortgagors and/or the related Mortgaged Properties set forth in Appendix II to
the Prospectus Supplement. This indemnity agreement will be in addition to any
liability which the Seller may otherwise have.
For purposes of this Agreement, "Registration Statement" shall mean the
registration statement No. 46723 filed by the Purchaser on Form S-3, including
without limitation exhibits thereto and information incorporated therein by
reference; "Prospectus" shall mean the prospectus dated March 20, 1997, as
supplemented by the prospectus supplement dated March 20, 1997 (the "Prospectus
Supplement"), relating to the Registered Certificates; "Memorandum" shall mean
the private placement memorandum dated March 20, 1997, relating to the
Non-Registered Certificates; "Computational Materials" shall have
- 15 -
<PAGE>
the meaning assigned thereto in the no-action letter dated May 20, 1994 issued
by the Division of Corporation Finance of the Securities and Exchange Commission
(the "Commission") to Kidder, Peabody Acceptance Corporation I, Kidder, Peabody
& Co. Incorporated, and Kidder Structured Asset Corporation and the no-action
letter dated May 27, 1994 issued by the Division of Corporation Finance of the
Commission to the Public Securities Association (together, the "Kidder
Letters"); "ABS Term Sheets" shall have the meaning assigned thereto in the
no-action letter dated February 17, 1995 issued by the Division of Corporation
Finance of the Commission to the Public Securities Association (the "PSA Letter"
and, together with the Kidder Letters, the "No-Action Letters"); "Diskette"
shall mean the diskette attached to each of the Prospectus and the Memorandum;
and "Master Tape" shall mean the compilation of information and data regarding
the Mortgage Loans and the Other Loans covered by the Agreed Upon Procedures
Letter dated March 20, 1997 and rendered by Deloitte & Touche, L.L.P. (a "hard
copy" of which Master Tape was initialed on behalf of the Seller and the
Purchaser).
b. In case any proceeding (including any governmental investigation) shall
be instituted involving any person that may seek indemnity pursuant to Section 9
(a) above, such person (the "indemnified party") shall notify the Seller as the
person against whom such indemnity may be sought (the "indemnifying party") in
writing and the indemnifying party, upon request of the indemnified party, shall
retain counsel reasonably satisfactory to the indemnified party to represent the
indemnified party and any others the indemnifying party may designate in such
proceeding and shall pay the reasonable fees and disbursements of such counsel
related to such proceeding. The indemnifying party may, at its option, at any
time upon written notice to the indemnified party, assume the defense of any
proceeding and may designate counsel satisfactory to the indemnified party in
connection therewith provided that the counsel so designated would have no
actual or potential conflict of interest in connection with such representation.
In any such proceeding, any indemnified party shall have the right to retain its
own counsel, but the reasonable fees and expenses of such counsel shall be at
the expense of such indemnified party unless (i) the indemnifying party and the
indemnified party shall have mutually agreed to the retention of such counsel,
(ii) the named parties to any such proceeding (including any impleaded parties)
include both the indemnifying party and the indemnified party and representation
of both parties by the same counsel would be inappropriate due to actual or
potential differing interests between them or (iii) the indemnifying party shall
have failed to designate within a reasonable period of time counsel reasonably
satisfactory to the indemnified party. It is understood that the indemnifying
party shall not, in connection with any proceeding or related proceedings in the
same jurisdiction, be liable for the reasonable fees and expenses of more than
one separate firm (in addition to any local counsel) for all such indemnified
parties. Unless it shall assume the defense of any proceeding, the indemnifying
party shall not be liable for any settlement of any proceeding effected without
its written consent (which consent shall not be unreasonably withheld), but if
settled with such consent or if there shall be a final judgment for the
plaintiff, the indemnifying party agrees to indemnify the indemnified party from
and against any loss or liability by reason of such settlement or judgment. If
the indemnifying party assumes the
- 16 -
<PAGE>
defense of any proceeding, it shall be entitled to settle such proceeding with
the consent of the indemnified party or, if such settlement provides for release
of the indemnified party in connection with all matters relating to the
proceeding which have been asserted against the indemnified party in such
proceeding by the other parties to such settlement, without the consent of the
indemnified party.
c. If the indemnification provided for in this Section 9 is unavailable or
insufficient to hold harmless an indemnified party in respect of any losses,
claims, damages, liabilities or expenses (or actions in respect thereof)
referred to in Section 9(a), then the indemnifying party, in lieu of
indemnifying such indemnified party, shall contribute to the amount paid or
payable by such indemnified party as a result of such losses, claims, damages,
liabilities or expenses (or actions in respect thereof) in such proportion as is
appropriate to reflect not only the relative benefits received by the Seller on
the one hand and the Purchaser on the other from the transactions contemplated
hereby, but also the relative fault of the Seller on the one hand and the
Purchaser on the other in connection with the statements or omissions that
resulted in such losses, claims, damages, liabilities or expenses (or actions in
respect thereof), as well as any other relevant equitable considerations. The
relative fault of the Seller on the one hand and of the Purchaser on the other
shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged omission
to state a material fact relates to information supplied by the Seller or by the
Purchaser, and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission.
d. The parties hereto agree that it would not be just and equitable if
contribution were determined by pro rata allocation or by any other method or
allocation that does not take account of the equitable considerations referred
to in subsection (c) above. The amount paid or payable by an indemnified party
as a result of the losses, claims, damages, liabilities or expenses (or actions
in respect thereof) referred to above shall be deemed to include any legal fees
and disbursements or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any such claim, except where
the indemnified party is required to bear such expenses, which expenses the
indemnifying party shall pay as and when incurred, at the request of the
indemnified party, to the extent that the indemnified party will ultimately be
obligated to pay such expenses. In the event that any expenses so paid by the
indemnifying party are subsequently determined to not be required to be borne by
the indemnifying party hereunder, the party which received such payment shall
promptly refund the amount so paid to the party which made such payment. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The remedies provided
for in this Section 9 are not exclusive and shall not limit any rights or
remedies that may otherwise be available to any indemnified party at law or in
equity.
- 17 -
<PAGE>
e. The indemnity and contribution agreements contained in this Section 9
shall remain operative and in full force and effect regardless of (i) any
termination of this Agreement, (ii) any investigation made by the Purchaser, any
of its directors or officers, or any person controlling the Purchaser, and (iii)
acceptances of and payment for any of the Mortgage Loans.
SECTION 10. COSTS.
Costs relating to the transactions contemplated hereby shall be borne by
the parties hereto or their respective affiliates in accordance with the Letter
of Understanding.
SECTION 11. NOTICES.
All demands, notices and communications hereunder shall be in writing and
shall be deemed to have been duly given if personally delivered to or mailed, by
registered mail, postage prepaid, by overnight mail or courier service, or
transmitted by facsimile and confirmed by a similar mailed writing, if to the
Purchaser, addressed to Morgan Stanley Capital I Inc., 1585 Broadway, New York,
New York, Attention: Russell Rahbany, facsimile no. (212) 761-0524, with a copy
to Morgan Stanley Capital I Inc., 1585 Broadway, New York, New York, Attention:
Gregory Walker, Esq., facsimile no. (212) 761-8915, or to such other address or
facsimile number as may hereafter be furnished to the Seller in writing by the
Purchaser; and if to the Seller, addressed to GMAC Commercial Mortgage
Corporation, 650 Dresher Road, P.O. Box 1015, Horsham, Pennsylvania 19044-8015,
Attention: Ms. Elisa George, facsimile no. (215) 682-3425 (with a copy to GMAC
Mortgage Corporation, 3031 West Grand Boulevard, Detroit, Michigan 48232,
Attention: Richard Kent, facsimile no. (313) 974-0685), or to such other address
or facsimile number as the Seller may designate in writing to the Purchaser.
SECTION 12. THIRD PARTY BENEFICIARIES.
Each of the officers, directors and controlling persons referred to in
Section 9 hereof is an intended third party beneficiary of the covenants and
indemnities of the Seller set forth in Section 9 of this Agreement. It is
acknowledged and agreed that such representations, warranties, covenants and
indemnities may be enforced by or on behalf of any such person or entity against
the Seller to the same extent as if it was a party hereto.
SECTION 13. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE DELIVERY.
All representations, warranties and agreements contained in this Agreement,
incorporated herein by reference or contained in the certificates of officers of
the Seller submitted pursuant hereto, shall remain operative and in full force
and effect and shall survive delivery of the Mortgage Loans by the Seller to the
Purchaser or its designee.
- 18 -
<PAGE>
SECTION 14. SEVERABILITY OF PROVISIONS.
Any part, provision, representation, warranty or covenant of this Agreement
that is prohibited or which is held to be void or unenforceable shall be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof. Any part, provision,
representation, warranty or covenant of this Agreement that is prohibited or
unenforceable or is held to be void or unenforceable in any particular
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
particular jurisdiction shall not invalidate or render unenforceable such
provision in any other jurisdiction. To the extent permitted by applicable law,
the parties hereto waive any provision of law which prohibits or renders void or
unenforceable any provision hereof.
SECTION 15. COUNTERPARTS.
This Agreement may be executed in any number of counterparts, each of which
shall be deemed to be an original, but all of which together shall constitute
one and the same instrument.
SECTION 16. GOVERNING LAW.
THIS AGREEMENT AND THE RIGHTS, DUTIES, OBLIGATIONS AND RESPONSIBILITIES OF
THE PARTIES HERETO SHALL BE GOVERNED IN ACCORDANCE WITH THE INTERNAL LAWS AND
DECISIONS OF THE STATE OF NEW YORK. THE PARTIES HERETO INTEND THAT THE
PROVISIONS OF SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW SHALL APPLY
TO THIS AGREEMENT.
SECTION 17. FURTHER ASSURANCES.
The Seller and the Purchaser agree to execute and deliver such instruments
and take such further actions as the other party may, from time to time,
reasonably request in order to effectuate the purposes and to carry out the
terms of this Agreement.
SECTION 18. SUCCESSORS AND ASSIGNS.
The rights and obligations of the Seller under this Agreement shall not be
assigned by the Seller without the prior written consent of the Purchaser,
except that any person into which the Seller may be merged or consolidated, or
any corporation or other entity resulting from any merger, conversion or
consolidation to which the Seller is a party, or any person succeeding to all or
substantially all of the business of the Seller, shall be the successor to the
Seller hereunder. The Purchaser has the right to assign its interest under this
- 19 -
<PAGE>
Agreement, in whole or in part, as may be required to effect the purposes of the
Pooling and Servicing Agreement, and the assignee shall, to the extent of such
assignment, succeed to the rights and obligations hereunder of the Purchaser. In
addition, any person into which the Purchaser may be merged or consolidated, or
any corporation or other entity resulting from any merger, conversion or
consolidation to which the Purchaser is a party, or any person succeeding to all
or substantially all of the business of the Purchaser, shall be the successor to
the Purchaser hereunder. Subject to the foregoing, this Agreement shall bind and
inure to the benefit of and be enforceable by the Seller and the Purchaser, and
their permitted successors and assigns, and the indemnified parties referred to
in Section 9.
SECTION 19. AMENDMENTS.
No term or provision of this Agreement may be amended, waived, modified or
in any way altered, unless such amendment, waiver, modification or alteration is
in writing and signed by a duly authorized officer of the party against whom
such amendment, waiver, modification or alteration is sought to be enforced.
SECTION 20. WAIVER OF TRIAL BY JURY.
THE PARTIES HERETO HEREBY WAIVE, TO THE FULLEST EXTENT PERMITTED BY LAW,
THE RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM, WHETHER IN
CONTRACT, TORT OR OTHERWISE, RELATING DIRECTLY OR INDIRECTLY TO THIS AGREEMENT
OR THE TRANSACTIONS CONTEMPLATED HEREBY.
[signatures on next page]
- 20 -
<PAGE>
IN WITNESS WHEREOF, the Seller and the Purchaser have caused their names to
be signed hereto by their respective duly authorized officers and/or
representatives as of the date first above written.
GMAC COMMERCIAL MORTGAGE CORPORATION
By: /s/ Elisa George
-----------------------------
Name: Elisa George
Title: Vice President
MORGAN STANLEY CAPITAL I INC.
By: /s/ Russell A. Rahbany
-----------------------------
Name: Russell A. Rahbany
Title: Vice President
- 21 -
<PAGE>
EXHIBIT A
MORTGAGE LOAN SCHEDULE
The Mortgage Loan Schedule shall set forth, among other things, the
following information with respect to each Mortgage Loan:
(i) the loan number;
(ii) the street address (including city, state and zip code) of the
related Mortgaged Property;
(iii) the date of the Mortgage Note;
(iv) the Mortgage Rate in effect as of the Cut-off Date and whether such
Mortgage Loan has an adjustable Mortgage Rate;
(v) the original principal balance;
(vi) the Cut-off Date Balance;
(vii) the (A) remaining term to stated maturity and (B) Stated Maturity
Date; and
(viii) the Due Date;
(ix) the amount of the Monthly Payment due on the first Due Date
following the Cut-off Date;
(x) if such Mortgage Loan has an adjustable Mortgage Rate, the (A)
Index, (B) Gross Margin, (C) first Mortgage Rate adjustment date
following the Cut-off Date and the frequency of Mortgage Rate
adjustments, (D) limitations, if any, on periodic adjustments to
the Mortgage Rate, (E) maximum and minimum lifetime Mortgage Rate,
if any, and (F) the first Monthly Payment adjustment date following
the Cut-off Date and the frequency of Monthly Payment adjustments;
and
(xi) the Master Servicing Fee Rate.
The Mortgage Loan Schedule shall also set forth the Aggregate Cut-off Date
Balance for all of the Mortgage Loans. Such list may be in the form of more than
one list, collectively setting forth all of the information required.
A-1
<PAGE>
MORTGAGE LOAN SCHEDULE
GMAC COMMERCIAL MORTGAGE CORPORATION
<TABLE>
<CAPTION>
Zip
Property Name Loan Number Street Address City State Code
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
St. Paul Gardens 01-1015456 50-54 Alton Place and 70-86 St. Paul Street Brookline MA 02146
Chauncy Street 01-1015458 18-26 Chauncy Street Cambridge MA 02138
Auburn/Harris 01-1015460 37-41 Auburn St. and 34-38 Harris Street Brookline MA 02146
Sunset Industrial Park 01-1015535 4-40A 19th.4-52B20th. 10-70 21st Street Brooklyn NY 11232
Centerpoint Plaza 01-1015227 640,660,680,690,& 730 South Mill Avenue Tempe AZ 85281
Sandy Springs Crossing Shopping Center 01-1015332 6690 RoswellRoad Atlanta GA 30328
Hampton Court 01-1015459 1221-1223 Beacon Street Brookline MA 02146
Langdon Terrace 01-1015455 1-3 Langdon Street Cambridge MA 02146
Wendell Terrace 01-1015457 19-21 Wendell Street Cambridge MA 02138
Hilton Village Shopping Center 01-1015361 6113-6149 North Scottsdale Road Scottsdale AZ 85253
Liberty Central Warehouse 01-1015228 1032-1060 Millbury Street Worcester MA 01607
Tower 801 Apt 01-1015235 801 Pine Street Seattle WA 98101
Southpointe Plaza 01-1015337 3209 Deans Bridge Road Augusta GA 30906
Plantation Plaza 01-1015338 1310 N. Fraser Street Georgetown SC 29440
Mountain View Plaza 01-1015339 1001 Virginia Avenue Martinsville VA 24112
Trident Pool I Roll Up of Five Properties 01-1015510 Various Various CA Various
Fenton Place Apartments 01-1015350 6900 and 7100 East Evans Avenue Denver CO 80224
Comfort Inn/Shady Grove Professional Bldg 01-1015151 Various Gaithersburg MD 20877
Trident Pool II-Rollup Of Six Properties 01-1015511 Various Various CA Various
TridentPool III-Roll Up of Five Properties 01-1015512 Various Various CA Various
Clinton Adams Corporation 01-1015407 111 Adams Road Clinton MA 01510
Lyons Plaza Shopping Center 01-1015263 471-479 Lyons Avenue Irvington Irvington/Newark NJ 07111
Promenade Shopping Center 01-1015295 SWC Bell Road and 99th Avenue Sun City AZ 85351
Ashley Court 01-1015083 10900 Bustleton Ave. Philadelphia PA 19116
Maple Hill Apartments 01-1015468 213 MapleAve. Horsham Twp. PA 19044
The Dukes' Plaza 01-1015615 2173-2359 South Main Street (Rt 11) Harrisonburg VA 22801
Sportmart Sporting Goods Store 01-1015352 3651 Torrance Boulevard Torrance CA 90503
Desert Gardens 01-1015061 13517 West Glendale Avenue Glendale AZ 85307
Mercado Del Lago 01-1015282 8300-8320 North Hayden Road Scottsdale AZ 85258
Creekside Apartments 01-1015019 3018 Knickerbocker Road San Angelo TX 76904
Applied Materials 01-1015257 1609 Centre Creek Drive Austin TX 78746
Madison & Manzanita 01-1015327 1670 North Murray Boulevard Sacramento CA 80915
Sundance Apartments 01-1015183 5800-5820 Madison Ave. Colorado Springs CO 95841
Sherwood Village Apartments 01-1015444 12000 E. Kansas Drive Aurora CO 80012
Lincoln Plaza 01-1015529 1300 South State Street Salt Lake City UT 84115
Parkway III & IV 01-1015367 2697 International Parkway Virginia Beach VA 23452
</TABLE>
Morgan Stanley Capital I Inc. 1997-C1
Fixed Cut-off First
Note or Original Date Rem. Maturity Payment
Date Rate Adjustable Balance Balance Term Date Due Date
- -------------------------------------------------------------------------------
12/24/96 8.350% Fixed 6,043,000 6,035,423.01 118 1/1/07 2/1/97
12/24/96 8.350% Fixed 5,787,000 5,779,744.00 118 1/1/07 2/1/97
12/24/96 8.350% Fixed 2,525,000 2,521,834.04 118 1/1/07 2/1/97
11/27/96 8.875% Fixed 12,000,000 11,966,971.79 117 12/1/06 1/1/97
7/24/96 9.125% Fixed 11,500,000 11,456,171.07 77 8/1/03 9/1/96
10/15/96 8.920% Fixed 11,460,000 11,434,255.32 80 11/1/03 12/1/96
12/24/96 8.500% Fixed 4,956,000 4,949,974,03 118 1/1/07 2/1/97
12/24/96 8.350% Fixed 2,640,000 2,636,689.84 118 1/1/07 2/1/97
12/24/96 8.350% Fixed 2,270,000 2,267,153.77 118 1/1/07 2/1/97
12/6/96 8.500% Fixed 9,000,000 8,989,056.96 118 1/1/07 2/1/97
7/23/96 9.375% Fixed 8,500,000 8,448,971.32 77 8/1/03 9/1/96
9/5/96 8.410% Fixed 8,200,000 8,174,341.38 79 10/1/03 11/1/96
12/6/96 8.190% Fixed 2,810,000 2,806,359.76 118 1/1/07 2/1/97
12/6/96 8.190% Fixed 2,400,000 2,396,890.89 118 1/1/07 2/1/97
12/6/96 8.190% Fixed 2,450,000 2,446,826.13 118 1/1/07 2/1/97
11/25/96 8.510% Fixed 7,472,000 7,450,161.86 117 12/1/06 1/1/97
10/3/96 8.940% Fixed 7,200,000 7,173,762.24 80 11/1/03 12/1/96
8/9/96 9.750% Fixed 7,100,000 7,065,812.52 114 9/1/06 10/1/96
11/25/96 8.450% Fixed 7,070,000 7,049,132.91 117 12/1/06 1/1/97
11/25/96 8.450% Fixed 7,038,000 7,017,227.34 117 12/1/06 1/1/97
12/17/96 9.000% Fixed 6,900,000 6,887,644.74 118 1/1/07 2/1/97
1/10/97 9.000% Fixed 6,750,000 6,745,300.53 119 2/1/07 3/1/97
8/14/96 8.750% Fixed 5,000,000 4,982,422.17 114 9/1/06 10/1/96
5/30/96 8.750% Fixed 5,000,000 4,956,919.06 111 5/30/06 7/1/96
12/12/96 8.500% Fixed 4,950,000 4,942,755.93 118 1/1/07 2/1/97
12/31/96 8.700% Fixed 4,200,000 4,192,096.51 118 1/1/07 2/1/97
10/21/96 9.050% Fixed 4,177,000 4,162,052.69 80 11/1/03 12/1/96
4/1/96 8.850% Fixed 4,200,000 4,160,291.52 110 5/1/06 6/1/96
7/10/96 9.375% Fixed 4,000,000 3,985,524.46 113 8/1/06 9/1/96
3/1/96 8.250% Fixed 3,225,000 3,199,367.47 108 3/1/06 4/1/96
11/11/96 8.875% Fixed 3,000,000 2,994,917.04 81 12/1/03 1/1/97
9/30/96 9.410% Fixed 3,000,000 2,987,310.24 115 10/1/06 11/1/96
10/9/96 8.750% Fixed 3,000,000 2,985,848.57 112 7/1/06 11/1/96
11/27/96 8.370% Fixed 2,900,000 2,891,328.06 81 12/1/03 1/1/97
12/24/96 8.940% Fixed 2,800,000 2,794,936.09 118 1/1/07 2/1/97
10/30/96 9.350% Fixed 2,760,000 2,750,603.41 80 11/1/03 12/1/96
Page 1
<PAGE>
MORTGAGE LOAN SCHEDULE
GMAC COMMERCIAL MORTGAGE CORPORATION
<TABLE>
<CAPTION>
Zip
Property Name Loan Number Street Address City State Code
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Woodcrest Pavilion 01-1015449 10 Melrose Avenue Cherry Hill NJ 08003
Park Village Apartments 01-1015395 520 East 2nd Street and 226 North Hobson Mesa AZ 85203
Pine Park Apartments 07-1000005 150 West 7200 South Midvale UT 84047
The Registry 01-1015160 11650 Adie Road St. Louis MO 63043
Washington Woodworking 01-1015397 2004-2010 Beaver Road Landover MD 20785
Scott Manor Apartments 01-1015217 4470 and 4490 East Jewell Avenue Denver CO 80222
Four Seasons Estates 01-1015504 9700 37th Place North Plymouth MN 55441
Valley View Apartments 01-1015271 507 - 517 Whitney Avenue Holyoke MA 01040
University Avenue Retail 01-1015513 415 University Avenue San Diego CA 92103
Oakland Terrace Apartments 01-1015279 6063 Roosevelt Boulevard Philadelphia PA 19149
Capri/ Graham House/Hale Hall Apartments 01-1015221 1250 Colorado Blvd. 1235-59 Albion Denver CO 80220
Royal Garden Apartments 01-1015218 3560 South 300 East Salt Lake City UT 84115
Lincoln Court Apartments 01-1015594 6367-6373 Lancaster Avenue Philadelphia PA 19151
Kutztown Garden Apartments 01-1015469 105 Normal Avenue Borough of Kutztown PA 19530
Clarke Products 01-1015454 1170 109TH Street Grand Prairie TX 75050
Springview Garden Apartments 01-1015438 8 Amosland Road Morton PA 19070
Greystone Court Apartments 01-1015299 4101 North Hall Street Dallas TX 75219
Fort Knox Storage Park 01-1015428 1900 East Bessemer Avenue Greensboro NC 27405
Montana Avenue Retail 01-1015514 1129 - 1133 Montana Avenue Santa Monica CA 90403
Northview Terrace Apartments 01-1015165 1412 SW 312th Street Federal Way WA 98023
</TABLE>
Morgan Stanley Capital I Inc. 1997-C1
Fixed Cut-off First
Note or Original Date Rem. Maturity Payment
Date Rate Adjustable Balance Balance Term Date Due Date
- -------------------------------------------------------------------------------
11/8/96 9.125% Fixed 2,400,000 2,396,139.22 117 12/1/06 1/1/97
10/14/96 8.790% Fixed 2,380,000 2,373,357.58 80 11/1/03 2/1/96
11/20/95 8.375% Fixed 2,075,000 2,042,665.75 105 12/1/05 1/1/96
6/3/96 9.600% Fixed 1,984,620 1,975,737.33 111 6/1/06 7/1/96
10/23/96 9.170% Fixed 1,900,000 1,893,334.75 116 11/1/06 12/1/96
7/17/96 9.140% Fixed 1,900,000 1,888,142.52 113 8/1/06 9/1/96
11/22/96 8.350% Fixed 1,655,000 1,650,034.85 117 12/1/06 1/1/97
9/6/96 9.190% Fixed 1,450,000 1,443,638.43 115 10/1/06 11/1/96
11/25/96 8.450% Fixed 1,435,000 1,430,764.70 117 12/1/06 1/1/97
9/13/96 8.840% Fixed 1,350,000 1,343,725.18 115 10/1/06 11/1/96
8/19/96 8.980% Fixed 1,350,000 1,337,611.62 234 9/1/96 10/1/96
7/31/96 8.980% Fixed 1,300,000 1,291,670.97 113 8/1/06 9/1/96
8/12/96 9.125% Fixed 1,268,000 1,263,873.51 78 9/1/03 10/1/96
12/12/96 8.500% Fixed 1,170,000 1,168,287.78 118 1/1/07 2/1/97
12/13/96 8.680% Fixed 1,100,000 1,097,923.21 118 1/1/07 2/1/97
11/22/96 8.550% Fixed 1,000,000 998,188.36 117 12/1/06 1/1/97
9/13/96 8.800% Fixed 1,000,000 995,321.40 79 0/1/03 11/1/96
11/20/96 8.850% Fixed 1,000,000 995,388.10 117 12/1/06 1/1/97
11/25/96 8.450% Fixed 629,000 627,143.57 117 12/1/06 1/1/97
7/8/96 7.938% Adjustable 1,540,000 1,532,518.17 113 8/1/06 9/1/96
--------------
223,431,545.67
==============
Page 2
<PAGE>
MORTGAGE LOAN SCHEDULE
GMAC COMMERCIAL MORTGAGE CORPORATION
<TABLE>
<CAPTION>
Monthly First Mortgage Frequency of Limitations
Payment Gross Rate Adjustment Mortgage Rate on Periodic
Property Name Loan Number Due 4/1/97 Index Margin Date Post Cut-off Adjustments Adjustments
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
St. Paul Gardens 01-1015456 45,824.57 N/A N/A N/A N/A N/A
Chauncy Street 01-1015458 43,883.30 N/A N/A N/A N/A N/A
Aubum/Harris 01-1015460 19,147.28 N/A N/A N/A N/A N/A
Sunset Industrial Park 01-1015535 99,678.38 N/A N/A N/A N/A N/A
Centerpoint Plaza 01-1015227 93,567.80 N/A N/A N/A N/A N/A
Sandy Springs Crossing Shopping Center 01-1015332 91,550.85 N/A N/A N/A N/A N/A
Hampton Court 01-1015459 38,107.35 N/A N/A N/A N/A N/A
Langdon Terrace 01-1015455 20,019.34 N/A N/A N/A N/A N/A
Wendell Terrace 01-1015457 17,213.60 N/A N/A N/A N/A N/A
Hilton Village Shopping Center 01-1015361 69,202.21 N/A N/A N/A N/A N/A
Liberty Central Warehouse 01-1015228 73,526.98 N/A N/A N/A N/A N/A
Tower 801 Apt 01-1015235 62,528.63 N/A N/A N/A N/A N/A
Southpointe Plaza 01-1015337 20,992.18 N/A N/A N/A N/A N/A
Plantation Plaza 01-1015338 17,929.27 N/A N/A N/A N/A N/A
Mountain View Plaza 01-1015339 18,302.79 N/A N/A N/A N/A N/A
Trident Pool I Roll Up of Five Properties 01-1015510 60,216.93 N/A N/A N/A N/A N/A
Fenton Place Apartments 01-1015350 60,126.59 N/A N/A N/A N/A N/A
Comfort Inn/Shady Grove Professional Bldg. 01-1015151 63,270.76 N/A N/A N/A N/A N/A
Trident Pool II-Rollup Of Six Properties 01-1015511 56,691.53 N/A N/A N/A N/A N/A
Trident Pool III-Roll Up of Five Propenies 01-1015512 56,434.94 N/A N/A N/A N/A N/A
Clinton Adams Corporation 01-1015407 57,904.55 N/A N/A N/A N/A N/A
Lyons Plaza Shopping Center 01-1015263 55,324.47 N/A N/A N/A N/A N/A
Promenade Shopping Center 01-1015295 39,335.02 N/A N/A N/A N/A N/A
Ashley Court 01-1015083 41,107.18 N/A N/A N/A N/A N/A
Maple Hill Apartments 01-1015468 38,671.75 N/A N/A N/A N/A N/A
The Dukes' Plaza 01-1015615 34,387.47 N/A N/A N/A N/A N/A
Sportmart Sporting Goods Store 01-1015352 35,196.36 N/A N/A N/A N/A N/A
Desert Gardens 01-1015061 34,815.84 N/A N/A N/A N/A N/A
Mercado Del Lago 01-1015282 33,269.97 N/A N/A N/A N/A N/A
Creekside Apartments 01-1015019 24,228.35 N/A N/A N/A N/A N/A
Applied Materials 01-1015257 23,869.35 N/A N/A N/A N/A N/A
Madison & Manzanita 01-1015327 24,664.31 N/A N/A N/A N/A N/A
Sundance Apartments 01-1015183 26,023.46 N/A N/A N/A N/A N/A
Sherwood Village Apartments 01-1015444 23,098.08 N/A N/A N/A N/A N/A
Lincoln Plaza 01-1015529 23,382.56 N/A N/A N/A N/A N/A
Parkway III & IV 01-1015367 23,826.87 N/A N/A N/A N/A N/A
</TABLE>
Morgan Stanley Capitalilac 1997-C1
Maximum Minimum First Monthly Frequency of Master
Lifetime Lifetime Payment Adjustment Payment Servicing
Mortgage Rate Mortgage Rate Date Post Cut-off Adjustments Fee Rate (bps)
- --------------------------------------------------------------------------------
N/A N/A N/A N/A 13.6
N/A N/A N/A N/A 13.6
N/A N/A N/A N/A 13.6
N/A N/A N/A N/A 13.6
N/A N/A N/A N/A 13.6
N/A N/A N/A N/A 13.6
N/A N/A N/A N/A 13.6
N/A N/A N/A N/A 13.6
N/A N/A N/A N/A 13.6
N/A N/A N/A N/A 13.6
N/A N/A N/A N/A 13.6
N/A N/A N/A N/A 13.6
N/A N/A N/A N/A 13.6
N/A N/A N/A N/A 13.6
N/A N/A N/A N/A 13.6
N/A N/A N/A N/A 13.6
N/A N/A N/A N/A 13.6
N/A N/A N/A N/A 13.6
N/A N/A N/A N/A 13.6
N/A N/A N/A N/A 13.6
N/A N/A N/A N/A 13.6
N/A N/A N/A N/A 13.6
N/A N/A N/A N/A 13.6
N/A N/A N/A N/A 13.6
N/A N/A N/A N/A 13.6
N/A N/A N/A N/A 13.6
N/A N/A N/A N/A 13.6
N/A N/A N/A N/A 13.6
N/A N/A N/A N/A 13.6
N/A N/A N/A N/A 13.6
N/A N/A N/A N/A 13.6
N/A N/A N/A N/A 13.6
N/A N/A N/A N/A 13.6
N/A N/A N/A N/A 13.6
N/A N/A N/A N/A 13.6
N/A N/A N/A N/A 13.6
Page 3
<PAGE>
MORTGAGE LOAN SCHEDULE
GMAC COMMERCIAL MORTGAGE CORPORATION
<TABLE>
<CAPTION>
Monthly First Mortgage Frequency of Limitations
Payment Gross Rate Adjustment Mortgage Rate on Periodic
Property Name Loan Number Due 4/1/97 Index Margin Date Post Cut-off Adjustments Adjustments
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
Woodcrest Pavilion 01-1015449 19,527.19 N/A N/A N/A N/A N/A
Park Village Apartments 01-1015395 19.075.97 N/A N/A N/A N/A N/A
Pine Park Apartments 07-1000005 16,534.03 N/A N/A N/A N/A N/A
The Registry 01-1015160 16,832 76 N/A N/A N/A N/A N/A
Washington Woodworking 01-1015397 16,166 50 N/A N/A N/A N/A N/A
Scott Manor Apartments 01-1015217 16,127.28 N/A N/A N/A N/A N/A
Four Seasons Estates 01-1015504 13,159.63 N/A N/A N/A N/A N/A
Valley View Apartments 01-1015271 12,357.56 N/A N/A N/A N/A N/A
University Avenue Retail 01-1015513 11,506.70 N/A N/A N/A N/A N/A
Oakland Terrace Apartments 01-1015279 11,181.61 N/A N/A N/A N/A N/A
Capri/ Graham House/Hale Hall Apartments 01-1015221 12,128.94 N/A N/A N/A N/A N/A
Royal Garden Apartments 01-1015218 10,891.75 N/A N/A N/A N/A N/A
Lincoln Court Apartments 01-1015594 10,316.87 N/A N/A N/A N/A N/A
Kutztown Garden Apartments 01-1015469 9,140.59 N/A N/A N/A N/A N/A
Clarke Products 01-1015454 8,991.32 N/A N/A N/A N/A N/A
Springview Garden Apartments 01-1015438 7,724.60 N/A N/A N/A N/A N/A
Greystone Court Apartments 01-1015299 8,255.43 N/A N/A N/A N/A N/A
Fort Knox Storage Park 01-1015428 8,901.02 N/A N/A N/A N/A N/A
Montana Avenue Retail 01-1015514 5,043.70 N/A N/A N/A N/A N/A
Northview Terrace Apartments 01-1015165 11,232.88 Libor-lmo. 2.500 3/28/97 Monthly None
</TABLE>
Morgan Stanley Capital I Inc. 1997-C1
Maximum Minimum First Monthly Frequency of Master
Lifetime Lifetime Payment Adjustment Payment Servicing
Mortgage Rate Mortgage Rate Date Post Cut-off Adjustments Fee Rate (bps)
- --------------------------------------------------------------------------------
N/A N/A N/A N/A 13.6
N/A N/A N/A N/A 13.6
N/A N/A N/A N/A 13.6
N/A N/A N/A N/A 13.6
N/A N/A N/A N/A 13.6
N/A N/A N/A N/A 13.6
N/A N/A N/A N/A 13.6
N/A N/A N/A N/A 13.6
N/A N/A N/A N/A 13.6
N/A N/A N/A N/A 13.6
N/A N/A N/A N/A 13.6
N/A N/A N/A N/A 13.6
N/A N/A N/A N/A 13.6
N/A N/A N/A N/A 13.6
N/A N/A N/A N/A 13.6
N/A N/A N/A N/A 13.6
N/A N/A N/A N/A 13.6
N/A N/A N/A N/A 13.6
N/A N/A N/A N/A 13.6
10.375 5.750 4/1/97 Monthly 13.6
Page 4
<PAGE>
EXHIBIT B
THE MORTGAGE FILE
The "Mortgage File" for any Mortgage Loan shall, subject to Section 2(b),
collectively consist of the following documents:
(i) the original Mortgage Note, endorsed by the most recent endorsee
prior to the Trustee or, if none, by the originator, without
recourse, either in blank or to the order of the Trustee in the
following form: "Pay to the order of LaSalle National Bank, as
trustee for the registered holders of Morgan Stanley Capital I
Inc., Commercial Mortgage Pass-Through Certificates, Series 1997 -
C1, without recourse";
(ii) the original or a copy of the related Mortgage and, if applicable,
the originals or copies of any intervening assignments of such
Mortgage showing a complete chain of assignment from the originator
of the Mortgage Loan to the most recent assignee of record thereof
prior to the Trustee, if any, in each case with evidence of
recording indicated thereon;
(iii) an original assignment of the related Mortgage, in recordable form,
executed by the most recent assignee of record thereof prior to the
Trustee or, if none, by the originator, either in blank or in favor
of the Trustee (in such capacity);
(iv) the original or a copy of the related Assignment of Leases (if such
item is a document separate from the Mortgage) and, if applicable,
the originals or copies of any intervening assignments of such
Assignment of Leases showing a complete chain of assignment from
the originator of the Mortgage Loan to the most recent assignee of
record thereof prior to the Trustee, if any, in each case with
evidence of recording thereon;
(v) an original assignment of any related Assignment of Leases (if such
item is a document separate from the Mortgage), in recordable form,
executed by the most recent assignee of record thereof prior to the
Trustee or, if none, by the originator, either in blank or in favor
of the Trustee (in such capacity), which assignment may be included
as part of the corresponding assignment of Mortgage referred to in
clause (iii) above;
(vi) an original or copy of any related security agreement (if such item
is a document separate from the Mortgage) and, if applicable, the
originals
B-2
<PAGE>
or copies of any intervening assignments of such security agreement
showing a complete chain of assignment from the originator of the
Mortgage Loan to the most recent assignee thereof prior to the
Trustee, if any;
(vii) an original assignment of any related security agreement (if such
item is a document separate from the Mortgage) executed by the most
recent assignee thereof prior to the Trustee or, if none, by the
originator, either in blank or in favor of the Trustee (in such
capacity), which assignment may be included as part of the
corresponding assignment of Mortgage referred to in clause (iii)
above;
(viii) originals or copies of all assumption, modification, written
assurance and substitution agreements, with evidence of recording
thereon (if appropriate), in those instances where the terms or
provisions of the Mortgage, Mortgage Note or any related security
document have been modified or the Mortgage Loan has been assumed;
(ix) the original or a copy of the lender's title insurance policy
issued in connection with the origination of the Mortgage Loan,
together with all endorsements or riders (or copies thereof) that
were issued with or subsequent to the issuance of such policy,
insuring the priority of the Mortgage as a first lien on the
Mortgaged Property;
(x) the original or a copy of any guaranty of the obligations of the
Mortgagor under the Mortgage Loan, together with (A) if applicable,
the originals or copies of any intervening assignments of such
guaranty showing a complete chain of assignment from the originator
of the Mortgage Loan to the most recent assignee thereof prior to
the Trustee, if any, and (B) an original assignment of such
guaranty executed by the most recent assignee thereof prior to the
Trustee or, if none, by the originator;
(xi) (A) file or certified copies of any UCC financing statements and
continuation statements which were filed in order to perfect (and
maintain the perfection of) any security interest held by the
originator of the Mortgage Loan (and each assignee of record prior
to the Trustee) in and to the personalty of the mortgagor at the
Mortgaged Property (in each case with evidence of filing thereon)
and which were in the possession of the Seller (or its agent) at
the time the Mortgage Files were delivered to the Trustee and (B)
if any such security interest is perfected and the earlier UCC
financing statements and continuation statements were in the
possession of the Seller, a UCC financing statement executed
B-3
<PAGE>
by the most recent assignee of record prior to the Trustee or, if
none, by the originator, evidencing the transfer of such security
interest, either in blank or in favor of the Trustee;
(xii) the original or a copy of the power of attorney (with evidence of
recording thereon, if appropriate) granted by the Mortgagor if the
Mortgage, Mortgage Note or other document or instrument referred to
above was signed on behalf of the Mortgagor; and
(xiii) if the Mortgagor has a leasehold interest in the related Mortgaged
Property, the original ground lease or a copy thereof;
provided that whenever the term "Mortgage File" is used to refer to documents
actually received by the Purchaser or the Trustee, such term shall not be deemed
to include such documents and instruments required to be included therein unless
they are actually so received.
B-4
<PAGE>
EXHIBIT C
REPRESENTATIONS AND WARRANTIES OF THE SELLER
REGARDING THE INDIVIDUAL MORTGAGE LOANS
With respect to each Mortgage Loan, the Seller hereby represents and
warrants, as of the date hereinbelow specified or, if no such date is specified,
as of the Closing Date, that:
(i) Ownership of Mortgage Loans. Immediately prior to the transfer
thereof to the Purchaser, the Seller had good and marketable title to, and
was the sole owner and holder of, such Mortgage Loan, free and clear of any
and all liens, encumbrances and other interests on, in or to such Mortgage
Loan (other than, in certain cases, the right of a subservicer to directly
service such Mortgage Loan). Such transfer validly assigns ownership of
such Mortgage Loan to the Purchaser free and clear of any pledge, lien,
encumbrance or security interest.
(ii) Authority to Transfer Mortgage Loans. The Seller has full right
and authority to sell, assign and transfer such Mortgage Loan. No provision
of the Mortgage Note, Mortgage or other loan document relating to such
Mortgage Loan prohibits or restricts the Seller's right to assign or
transfer such Mortgage Loan.
(iii) Mortgage Loan Schedule. The information pertaining to such
Mortgage Loan set forth in the Mortgage Loan Schedule was true and correct
in all material respects as of the Cut- off Date.
(iv) Payment Record. Such Mortgage Loan was not as of the Cut-off
Date, and has not been during the twelve-month period prior thereto, 30
days or more delinquent in respect of any debt service payment required
thereunder, without giving effect to any applicable grace period.
(v) Lien Priority. The Permitted Encumbrances (as defined in the
Mortgage Loan Purchase Agreement of which this Exhibit C forms a part) do
not materially interfere with the security intended to be provided by the
related Mortgage, the current use or operation of the related Mortgaged
Property or the current ability of the Mortgaged Property to generate net
operating income sufficient to service the Mortgage Loan. If the Mortgaged
Property is operated as a nursing facility, a hospitality property or a
multifamily property, the Mortgage, together with any separate security
agreement, similar agreement and UCC financing statement, if any,
establishes and creates a first priority, perfected security interest, to
the extent such security interest can be perfected by the recordation of a
Mortgage and the filing of a UCC financing statement, in all personal
property owned by the Mortgagor that is used in, and is reasonably
necessary to, the operation of the related Mortgaged Property.
<PAGE>
(vi) Title Insurance. The lien of the related Mortgage is insured by
an ALTA lender's title insurance policy ("Title Policy"), or its equivalent
as adopted in the applicable jurisdiction, issued by a nationally
recognized title insurance company, insuring the originator of such
Mortgage Loan, its successors and assigns, as to the first priority lien of
the Mortgage in the original principal amount of the Mortgage Loan after
all advances of principal, subject only to Permitted Encumbrances (or, if a
title insurance policy has not yet been issued in respect of the Mortgage
Loan, a policy meeting the foregoing description is evidenced by a
commitment for title insurance "marked-up" at the closing of such loan).
Each Title Policy (or, if it has yet to be issued, the coverage to be
provided thereby) is in full force and effect, all premiums thereon have
been paid and, to the Seller's knowledge, no material claims have been made
thereunder and no claims have been paid thereunder. No holder of the
related Mortgage has done, by act or omission, anything that would
materially impair the coverage under such Title Policy. Immediately
following the transfer and assignment of the related Mortgage Loan to the
Trustee, such Title Policy (or, if it has yet to be issued, the coverage to
be provided thereby) will inure to the benefit of the Trustee without the
consent of or notice to the insurer.
(vii) No Waivers by Seller of Material Defaults. The Seller has not
waived any material default, breach, violation or event of acceleration
existing under the related Mortgage or Mortgage Note.
(viii) No Offsets, Defenses or Counterclaims. There is no valid
offset, defense or counterclaim to such Mortgage Loan.
(ix) Condition of Property; Condemnation. Except as set forth in any
engineering report prepared in connection with the origination of (or
obtained in connection with or otherwise following the Seller's acquisition
of) such Mortgage Loan, the related Mortgaged Property is, to the Seller's
knowledge, free and clear of any damage that would materially and adversely
affect its value as security for such Mortgage Loan. The Seller has no
actual notice of the commencement of a proceeding for the condemnation of
all or any material portion of the related Mortgaged Property.
(x) Compliance with Usury Laws. Such Mortgage Loan complied with all
applicable usury laws in effect at its date of origination.
(xi) Full Disbursement of Mortgage Loan Proceeds. The proceeds of such
Mortgage Loan have been fully disbursed and there is no requirement for
future advances thereunder.
(xii) Enforceability. The related Mortgage Note and Mortgage and all
other documents and instruments evidencing, guaranteeing, insuring or
otherwise securing such Mortgage Loan have been duly and properly executed
by the parties thereto, and each is the legal, valid and binding obligation
of the maker thereof (subject to any non-recourse provisions contained in
any of the foregoing agreements and any applicable state anti-deficiency
legislation),
C-2
<PAGE>
enforceable in accordance with its terms, except as such enforcement may be
limited by bankruptcy, insolvency, reorganization, receivership, moratorium
or other laws relating to or affecting the rights of creditors generally
and by general principles of equity (regardless of whether such enforcement
is considered in a proceeding in equity or at law).
(xiii) Insurance. All improvements upon the related Mortgaged Property
are insured against loss by hazards of extended coverage in an amount
(subject to a customary deductible) at least equal to the lesser of the
outstanding principal balance of such Mortgage Loan and 100% of the full
insurable replacement cost of the improvements located on such Mortgaged
Property and the related hazard insurance policy contains appropriate
endorsements to avoid the application of co-insurance and does not permit
reduction in insurance proceeds for depreciation. If any portion of the
related Mortgaged Property was, at the time of the origination of such
Mortgage Loan, in an area identified in the Federal Register by the Flood
Emergency Management Agency as having special flood hazards, and flood
insurance was available, a flood insurance policy meeting any requirements
of the then current guidelines of the Federal Insurance Administration is
in effect with a generally acceptable insurance carrier, in an amount
representing coverage not less than the least of (1) the outstanding
principal balance of such Mortgage Loan, (2) the full insurable value of
such Mortgaged Property, (3) the maximum amount of insurance available
under the National Flood Insurance Act of 1968, as amended, and (4) 100% of
the replacement cost of the improvements located on such Mortgaged
Property. In addition, the Mortgage requires the Mortgagor to maintain in
respect of the Mortgaged Property comprehensive general liability insurance
in amounts generally required by commercial mortgage lenders, and at least
six months rental or business interruption insurance, and all such
insurance required by the Mortgage to be maintained is in full force and
effect. Each such insurance policy requires prior notice to the holder of
the Mortgage of termination or cancellation, and no such notice has been
received, including any notice of nonpayment of premiums, that has not been
cured.
(xiv) Environmental Condition. The related Mortgaged Property was
subject to one or more environmental site assessments (or an update of a
previously conducted assessment), which was (were) performed on behalf of
the Seller, or as to which the related report was delivered to the Seller
in connection with its origination or acquisition of such Mortgage Loan;
and the Seller, having made no independent inquiry other than reviewing the
resulting report(s) and/or employing an environmental consultant to perform
the assessment(s) referenced herein, has no knowledge of any material and
adverse environmental conditions or circumstance affecting such Mortgaged
Property that was not disclosed in the related report(s). The Seller has
not taken any action with respect to such Mortgage Loan or the related
Mortgaged Property that could subject the Purchaser, or its successors and
assigns in respect of the Mortgage Loan, to any liability under the
Comprehensive Environmental Response, Compensation and Liability Act of
1980, as amended ("CERCLA") or any other applicable federal, state or local
environmental law, and the Seller has not received any actual notice of a
material violation of CERCLA or any applicable federal, state or local
environmental law with respect to the related Mortgaged Property that was
not disclosed in the related report. The related Mortgage requires the
Mortgagor to comply with all applicable federal, state and local
environmental laws and regulations.
C-3
<PAGE>
(xv) No Cross-Collateralization with Other Mortgage Loans. Such
Mortgage Loan is not cross-collateralized with any mortgage loan that will
not be included in the Trust Fund.
(xvi) Waivers and Modifications. The terms of the related Mortgage and
the Mortgage Note have not been impaired, waived, altered or modified in
any material respect, except as specifically set forth in the related
Mortgage File.
(xvii) Taxes and Assessments. There are no delinquent taxes, ground
rents, water charges, sewer rents, assessments or other similar outstanding
charges affecting the related Mortgaged Property which are or may become a
lien of priority equal to or higher than the lien of the related Mortgage.
For purposes of this representation and warranty, real property taxes and
assessments shall not be considered unpaid until the date on which interest
and/or penalties would be payable thereon.
(xviii) Mortgagor's Interest in Mortgaged Property. Except in the case
of two Mortgage Loans (the Mortgage Loans secured by Center Point Plaza
(Mortgage Loan No. 01- 1015227) and Hilton Village Shopping Center
(Mortgage Loan No. 01-1015361)) as to which the interest of the related
Mortgagor in the related Mortgaged Property is in whole or in part a
leasehold estate, the interest of the related Mortgagor in the related
Mortgaged Property consists of a fee simple estate in real property.
(xix) Whole Loan. Each Mortgage Loan is a whole loan and not a
participation interest.
(xx) Valid Assignment. The assignment of the related Mortgage referred
to in clause (iii) of Exhibit B constitutes the legal, valid and binding
assignment of such Mortgage from the relevant assignor to the assignee, and
the assignment of the related Assignment of Leases, if any, referred to in
clause (v) of Exhibit B constitutes the legal, valid and binding assignment
thereof from the relevant assignor to the Trustee.
(xxi) Escrows. All escrow deposits relating to such Mortgage Loan that
are, as of the Closing Date, required to be deposited with the mortgagee or
its agent have been so deposited.
(xxii) No Mechanics' or Materialmen's Liens. As of the date of
origination of such Mortgage Loan and, to the actual knowledge of the
Seller, as of the Closing Date, the related Mortgaged Property was and is
free and clear of any mechanics' and materialmen's liens or liens in the
nature thereof which create a lien prior to that created by the related
Mortgage.
(xxiii) No Material Encroachments. To the Seller's knowledge (based on
surveys and/or title insurance obtained in connection with the origination
of such Mortgage Loan), as of the date of such origination, no improvement
that was included for the purpose of determining the appraised value of the
related Mortgaged Property at the time of origination of such Mortgage
C-4
<PAGE>
Loan lay outside the boundaries and building restriction lines of such
property to any material extent (unless affirmatively covered by the title
insurance referred to in paragraph (vi) above), and no improvements on
adjoining properties encroached upon such Mortgaged Property to any
material extent. To the Seller's knowledge, based upon opinions of counsel
and/or other due diligence customarily performed by commercial mortgage
lenders, the improvements located on or forming part of such Mortgaged
Property comply in all material respects with applicable zoning laws and
ordinances (except to the extent that they may constitute legal
non-conforming uses).
(xxiv) Originator Authorized. To the extent required under applicable
law as of the Closing Date, the originator of such Mortgage Loan was
authorized to do business in the jurisdiction in which the related
Mortgaged Property is located at all times when it held the Mortgage Loan
to the extent necessary to ensure the enforceability of such Mortgage Loan.
(xxv) No Material Default. To the Seller's knowledge, there exists (A)
no material default, breach or event of acceleration under the related
Mortgage or Mortgage Note, and (B) no event (other than payments due but
not yet delinquent) that, with the passage of time or with notice and the
expiration of any grace or cure period, would constitute such a material
default, breach or event of acceleration; provided, however, that this
representation and warranty does not cover any default, breach or event of
acceleration that specifically pertains to any matter otherwise covered or
addressed by any other representation and warranty made by the Seller
therein.
(xxvi) Adjustable Mortgage Rate. If the Mortgage Loan has an
adjustable Mortgage Rate, all of the terms of the related Mortgage Note
pertaining to interest rate adjustments, payment adjustments and
adjustments of the principal balance are enforceable such adjustments will
not affect the priority of the lien of the related Mortgage, and all such
adjustments and all calculations made before the Cut-off Date were made
correctly and in full compliance with the terms of the related Mortgage and
Mortgage Note.
(xxvii) No Equity Participation or Contingent Interest. The Mortgage
Loan contains no equity participation by the lender, and does not provide
for any contingent or additional interest in the form of participation in
the cash flow of the related Mortgaged Property, or for negative
amortization.
(xxviii) No Advances of Funds. No holder of the Mortgage Loan has, to
the Seller's knowledge, advanced funds or induced, solicited or knowingly
received any advance of funds from a party other than the owner of the
related Mortgaged Property, directly or indirectly, for the payment of any
amount required by the Mortgage Loan.
(xxix) Licenses, Permits, Etc. To the Seller's knowledge, based on due
diligence customarily performed in the origination of comparable mortgage
loans by the Seller, as of the date of origination of the Mortgage Loan,
the related Mortgagor was in possession of all material licenses, permits
and authorizations required by applicable laws for the ownership and
operation of the related Mortgaged Property as it was then operated.
C-5
<PAGE>
(xxx) Servicing. The servicing and collection practices used with
respect to the Mortgage Loan have complied with applicable law in all
material respects and are consistent with the servicing standard set forth
in Section 8.1 of the Pooling and Servicing Agreement.
(xxxi) Customary Remedies. The related Mortgage or Mortgage Note,
together with applicable state law, contains customary and enforceable
provisions (subject to the exceptions set forth in paragraph (xii)) such as
to render the rights and remedies of the holders thereof adequate for the
practical realization against the related Mortgaged Property of the
principal benefits of the security intended to be provided thereby.
(xxxii) Insurance and Condemnation Proceeds. The related Mortgage
provides that insurance proceeds and condemnation proceeds will be applied
either to restore or repair the Mortgaged Property, or to repay the
principal of the Mortgage Loan or otherwise at the option of the holder of
the Mortgage.
(xxxiii) LTV. The gross proceeds of each Mortgage Loan to the related
Mortgagor at origination did not exceed the non-contingent principal amount
of the Mortgage Loan and either: (A) such Mortgage Loan is secured by an
interest in real property having a fair market value (1) at the date the
Mortgage Loan was originated at least equal to 80 percent of the original
principal balance of the Mortgage Loan or (2) at the Closing Date at least
equal to 80 percent of the principal balance of the Mortgage Loan on such
date; provided that for purposes hereof, the fair market value of the real
property interest must first be reduced by (X) the amount of any lien on
the real property interest that is senior to the Mortgage Loan and (Y) a
proportionate amount of any lien that is in parity with the Mortgage Loan
(unless such other lien secures a Mortgage Loan that is
cross-collateralized with such Mortgage Loan, in which event the
computation described in clauses (1) and (2) of this paragraph (xxx) shall
be made on a pro rata basis in accordance with the fair market values of
the Mortgaged Properties securing such cross-collateralized Mortgage Loans;
or (B) substantially all the proceeds of such Mortgage Loan were used to
acquire, improve or protect the real property which served as the only
security for such Mortgage Loan (other than a recourse feature or other
third party credit enhancement within the meaning of Treasury Regulations
Section 1.860G-2(a)(1)(ii)).
(xxxiv) LTV and Significant Modifications. If the Mortgage Loan was
"significantly modified" prior to the Closing Date so as to result in a
taxable exchange under Section 1001 of the Code, it either (A) was modified
as a result of the default or reasonably foreseeable default of such
Mortgage Loan or (B) satisfies the provisions of either clause (A)(1) of
paragraph (xxxiii) (substituting the date of the last such modification for
the date the Mortgage Loan was originated) or clause (A)(2) of paragraph
(xxxiii), including the proviso thereto.
(xxxv) [Intentionally Omitted.]
(xxxvi) Litigation. To the Seller's actual knowledge, there are no
pending actions, suits or proceedings by or before any court or
governmental authority against or affecting the
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related Mortgagor or the related Mortgaged Property that, if determined
adversely to such Mortgagor or Mortgaged Property, would materially and
adversely affect the value of the Mortgaged Property or the ability of the
Mortgagor to pay principal, interest or any other amounts due under such
Mortgage Loan.
(xxxvii) Leasehold Estate. Each Mortgaged Property consists of the
related Mortgagor's fee simple estate in real estate or, if the related
Mortgage Loan is secured in whole or in part by the interest of a Mortgagor
as a lessee under a ground lease of a Mortgaged Property (a "Ground
Lease"), by the related Mortgagor's interest in the Ground Lease but not by
the related fee interest in such Mortgaged Property (the "Fee Interest"):
(i) To the actual knowledge of the Seller, such Ground Lease or a
memorandum thereof has been or will be duly recorded; such
Ground Lease (or the related estoppel letter or lender
protection agreement between the Seller and related lessor)
permits the interest of the lessee thereunder to be
encumbered by the related Mortgage; and there has been no
material change in the payment terms of such Ground Lease
since the origination of the related Mortgage Loan, with the
exception of material changes reflected in written
instruments that are a part of the related Mortgage File;
(ii) The lessee's interest in such Ground Lease is not subject to
any liens or encumbrances superior to, or of equal priority
with, the related Mortgage, other than Permitted
Encumbrances;
(iii) The Mortgagor's interest in such Ground Lease is assignable
to the Purchaser and its successors and assigns upon notice
to, but without the consent of, the lessor thereunder (or, if
such consent is required, it has been obtained prior to the
Closing Date) and, in the event that it is so assigned, is
further assignable by the Purchaser and its successors and
assigns upon notice to, but without the need to obtain the
consent of, such lessor;
(iv) Such Ground Lease is in full force and effect, and the Seller
has received no notice that an event of default has occurred
thereunder, and, to the Seller's actual knowledge, there
exists no condition that, but for the passage of time or the
giving of notice, or both, would result in an event of
default under the terms of such Ground Lease;
(v) Such Ground Lease, or an estoppel letter or other agreement,
requires the lessor under such Ground Lease to give notice of
any default by the lessee to the mortgagee, provided that the
mortgagee has provided the lessor with notice of its lien in
accordance with the provisions of such Ground Lease, and such
Ground Lease, or an estoppel letter or other agreement,
further provides that no notice of termination given under
such Ground Lease is
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<PAGE>
effective against the mortgagee unless a copy has been
delivered to the mortgagee;
(vi) A mortgagee is permitted a reasonable opportunity (including,
where necessary, sufficient time to gain possession of the
interest of the lessee under such Ground Lease) to cure any
default under such Ground Lease, which is curable after the
receipt of notice of any such default, before the lessor
thereunder may terminate such Ground Lease;
(vii) Such Ground Lease has an original term (including any
extension options set forth therein) which extends not less
than ten years beyond the Stated Maturity Date of the related
Mortgage Loan;
(viii) Under the terms of such Ground Lease and the related
Mortgage, taken together, any related insurance proceeds
other than in respect of a total or substantially total loss
or taking, will be applied either to the repair or
restoration of all or part of the related Mortgaged Property,
with the mortgagee or a trustee appointed by it having the
right to hold and disburse such proceeds as the repair or
restoration progresses (except in such cases where a
provision entitling another party to hold and disburse such
proceeds would not be viewed as commercially unreasonable by
a prudent commercial mortgage lender), or to the payment of
the outstanding principal balance of the Mortgage Loan
together with any accrued interest thereon; and
(ix) Such Ground Lease does not impose any restrictions on
subletting which would be viewed, as of the date of
origination of the related Mortgage Loan, as commercially
unreasonable by the Seller; and such Ground Lease contains a
covenant that the lessor thereunder is not permitted, in the
absence of an uncured default, to disturb the possession,
interest or quiet enjoyment of any subtenant of the lessee,
or in any manner, which would adversely affect the security
provided by the related Mortgage
(xxxviii) Deed of Trust. If the related Mortgage is a deed of trust, a
trustee, duly qualified under applicable law to serve as such, is properly
designated and serving under such Mortgage.
(xxxix) Lien Releases. Except in cases where either (a) a release of a
portion of the Mortgaged Property was contemplated at origination of the
Mortgage Loan and such portion was not considered material for purposes of
underwriting the Mortgage Loan or (b) release is conditioned upon the
satisfaction of certain underwriting and legal requirements and the payment
of a release price, the related Mortgage Note or Mortgage does not require
the holder thereof to
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<PAGE>
release all or any portion of the Mortgaged Property from the lien of the
related Mortgage except upon payment in full of all amounts due under such
Mortgage Loan.
(xl) Junior Liens. The Mortgage Loan does not permit the related
Mortgaged Property to be encumbered by any lien junior to or of equal
priority with the lien of the related Mortgage without the prior written
consent of the holder thereof or the satisfaction of debt service coverage
or similar conditions specified therein.
(xli) Mortgagor Bankruptcy. To the Seller's knowledge, the Mortgagor
is not a debtor in any state or federal bankruptcy or insolvency
proceeding.
It is understood and agreed that the representations and warranties set
forth in this Exhibit C shall survive delivery of the respective Mortgage Files
to the Purchaser and/or the Trustee and shall inure to the benefit of the
Purchaser, and its successors and assigns (including without limitation the
Trustee and the holders of the Certificates), notwithstanding any restrictive or
qualified endorsement or assignment.
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<PAGE>
EXHIBIT D-1
FORM OF CERTIFICATE OF AN OFFICER OF
THE SELLER
CERTIFICATE OF OFFICER OF SELLER
I, Glen W. Snyder, a Secretary of GMAC Commercial Mortgage Corporation (the
"Seller"), hereby certify as follows:
The Seller is a corporation duly organized, validly existing and in good
standing under the laws of the State of California.
Attached hereto as Exhibit I are true, correct and complete copies of the
Certificate of Incorporation and By-Laws of the Seller, which Certificate of
Incorporation and By-Laws are on the date hereof, and have been at all times, in
full force and effect.
Attached hereto as Exhibit II is a true, correct and complete copy of the
resolutions adopted by the board of directors of the Seller on __________, 1997,
authorizing the transactions contemplated by that certain Mortgage Loan Purchase
Agreement, dated as of March 20, 1997, (the "Purchase Agreement"), between the
Seller and Morgan Stanley Capital I Inc., and such resolutions have not been
rescinded, annulled or amended since the date of their adoption.
To the best of my knowledge, no proceedings looking toward liquidation or
dissolution of the Seller are pending or contemplated.
Each person listed below is and has been the duly elected or appointed, as
the case may be, and qualified officer, representative or authorized signatory
of the Seller and his genuine signature is set forth opposite his name:
NAME OFFICE SIGNATURE
_________________ __________________ __________________
_________________ __________________ __________________
Each person listed above who signed, either manually or by facsimile
signature, the Purchase Agreement and any other document or certificate
delivered by or on behalf of the Seller on or before the date hereof in
connection with the transactions contemplated by the Purchase Agreement, was, at
the respective times of such signing and delivery, duly authorized or appointed
to execute such documents in such capacity, and the signatures of such persons
or facsimiles thereof appearing on such documents are their genuine signatures.
D1-1
<PAGE>
Capitalized terms not otherwise defined herein have the meanings
assigned to them in the Purchase Agreement.
IN WITNESS WHEREOF, the undersigned has executed this certificate as of
March __________, 1997.
By:_____________________________
Name: Glen W. Snyder
Title: Secretary
I, [name], [title], hereby certify that ________________ is a duly elected
or appointed, as the case may be, qualified and acting ______________ of the
Seller and that the signature appearing above is his/her genuine signature.
IN WITNESS WHEREOF, the undersigned has executed this certificate as of
March __________, 1997.
By:_____________________________
Name:
Title:
D1-2
<PAGE>
EXHIBIT D-2
FORM OF CERTIFICATE OF THE SELLER
CERTIFICATE OF SELLER
In connection with the execution and delivery by GMAC Commercial Mortgage
Corporation (the "Seller") of, and the consummation of the transaction
contemplated by, that certain Mortgage Loan Purchase Agreement, dated as of
March 20, 1997 (the "Purchase Agreement"), between Morgan Stanley Capital I Inc.
and the Seller, the Seller hereby certifies that (i) the representations and
warranties of the Seller in the Purchase Agreement are true and correct in all
material respects at and as of the date hereof with the same effect as if made
on the date hereof, and (ii) the Seller has, in all material respects, complied
with all the agreements and satisfied all the conditions on its part to be
performed or satisfied at or prior to the date hereof. Capitalized terms not
otherwise defined herein have the meanings assigned to them in the Purchase
Agreement.
Certified this ___ day of March, 1997.
GMAC COMMERCIAL MORTGAGE CORPORATION
By:_____________________________
Name:
Title:
D2-1
<PAGE>
EXHIBIT D-3A
FORM OF OPINION I OF COUNSEL TO THE SELLER
D3-1
<PAGE>
EXHIBIT D-3B
FORM OF OPINION II OF COUNSEL TO THE SELLER
D3-2
<PAGE>
EXHIBIT E
FORM OF CONFIDENTIALITY AGREEMENT
E-1
Exhibit 99.1D
<PAGE>
================================================================================
CONTIFINANCIAL CORPORATION
Guarantor
in favor of
MORGAN STANLEY CAPITAL I INC.
AND CERTAIN OTHERS
------------------------------
GUARANTY AGREEMENT
Dated as of March 20, 1997
------------------------------
================================================================================
<PAGE>
Guaranty Agreement (the "Agreement"), dated as of March 20, 1997, from
ContiFinancial Corporation (the "Guarantor") in favor of Morgan Stanley Capital
I Inc. (the "Depositor") and all additional persons and entities (the "Other
Beneficiaries" and, collectively with the Depositor, the "Beneficiaries")
entitled to indemnification under Section 9 of the Mortgage Loan Purchase
Agreement dated as of even date herewith (the Purchase Agreement), between
ContiTrade Services L.L.C. (the "Seller") and the Depositor.
The Depositor requires, as an inducement and a condition precedent to its
entering into the Purchase Agreement with the Seller, that the Guarantor
guarantees certain obligations of the Seller under the Purchase Agreement. The
Guarantor desires that the Depositor enter into the Purchase Agreement and is
willing to enter into this Agreement in order to induce the Depositor to do so.
The Guarantor is a corporation affiliated with the Seller. Capitalized terms
used but not otherwise defined herein shall have the respective meanings
ascribed to such terms in the Purchase Agreement.
Now, therefore, in consideration of the premises and the mutual agreements
set forth herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Guarantor agrees as follows:
ARTICLE I
GUARANTEED OBLIGATIONS
Section 1.1 Obligations Guaranteed. The Guarantor hereby guarantees to the
Depositor and the Other Beneficiaries (a) the timely purchase or replacement of
any Mortgage Loans which the Seller is obligated to repurchase or replace
pursuant to Section 6 of the Purchase Agreement and fails to do so in accordance
therewith, (b) the due and punctual payment, observance and performance of any
and all of the obligations of the Seller pursuant to Section 9 of the Purchase
Agreement, if the Seller fails to pay or perform as required thereunder (the
obligations specified in this clause (b) and the preceding clause (a), as such
may be amended or modified from time to time with the written consent of the
Guarantor, collectively, the "Seller Obligations"), and (c) the timely payment
of costs, expenses (including, without limitation, expenses of enforcement) and
liabilities resulting from the failure of the Seller to satisfy any Seller
Obligation in accordance with the Purchase Agreement; provided that,
notwithstanding anything herein to the contrary, in no event shall the Guarantor
guaranty or otherwise be responsible for any Seller Obligation to the extent
(but only to the extent) that such Seller Obligation has been amended,
rescinded, waived, modified or in any way altered without the written consent of
the Guarantor. It is herein acknowledged that no Seller Obligation may be
amended, rescinded, waived, modified or in any way altered except by writing
signed by the Depositor and the Seller.
Section 1.2 Nature of the Guaranteed Obligations. (a) The Guarantor further
agrees that this Agreement constitutes an absolute, unconditional, irrevocable,
present and continuing guaranty of performance and payment and not of
collection. The Guarantor's obligations hereunder (the "Guaranty Obligations")
are primary, direct, unconditional and
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<PAGE>
completely independent of the obligations of any other person or entity, and are
primary direct obligations of the Guarantor to the Depositor and the Other
Beneficiaries.
(b) If any payment by the Seller to any person or entity under any of the
Seller Obligations is rescinded or must be returned by such person or entity for
any reason (including, without limitation, the entry of an order under any
present or future federal or state bankruptcy, insolvency or similar law) the
Guaranty Obligations of the Guarantor hereunder shall be reinstated with respect
to such payment.
(c) None of the Beneficiaries shall have a duty to advise the Guarantor of
information known to it regarding such condition or any such circumstances.
(d) The Guaranty Obligations shall remain in full force and effect until
both (i) satisfaction or performance thereof in full and (ii) the obligations of
the Seller under the Purchase Agreement are paid, observed, performed and
satisfied in full. The Guarantor guarantees and agrees that the Seller
Obligations will be satisfied in accordance with the terms thereof, subject to
the proviso to Section 1.1. The liability of the Guarantor under this Agreement
shall be absolute, unconditional and irrevocable irrespective of:
(i) any lack of validity, legality or enforceability of the Purchase
Agreement.
(ii) the failure of any Beneficiary (i) to assert any claim or demand
not expressly required under the terms of the Purchase Agreement or to
enforce any right or remedy against the Seller under the Purchase
Agreement, or (ii) to exercise any right or remedy against any other
guarantor of, or collateral securing, any of the Seller Obligations;
(iii) subject to the proviso to Section 1.1, any reduction,
limitation, impairment or termination of any of the obligations of the
Seller under the Purchase Agreement for any reason, including any claim of
waiver, release, surrender, alteration or compromise by reason of the
invalidity, illegality, non-genuineness, irregularity, compromise or
unenforceability of, or any other event or occurrence affecting, such
obligations, except as expressly set forth in the Purchase Agreement;
(iv) subject to the proviso to Section 1.1, any amendment to,
rescission, waiver, or other modification of, or any consent to or
departure from, any of the terms of the Purchase Agreement; and
(v) any other circumstance which might otherwise constitute a defense
to or a discharge of the Seller of its obligations under the Purchase
Agreement based upon the bankruptcy or insolvency of the Seller.
provided that, notwithstanding anything to the contrary contained herein, the
Guarantor shall not be required to make a payment hereunder pursuant to the
Guaranty Obligations to the
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extent that there exists a valid defense, set-off, discharge, right of release
or equitable right of limitation or liability under the Purchase Agreement to
which the Seller is rightfully entitled and that does not arise out of the
bankruptcy or insolvency of the Seller.
Section 1.3 Certain Waivers of the Guarantor. The Guarantor hereby waives:
(a) promptness, diligence, notice of acceptance and any other notice
with respect to any of the Seller Obligations and this Agreement, except
notices to the Guarantor specifically provided in this Agreement, and
(b) any requirement that the Depositor or any Other Beneficiary
secure, perfect or insure any security interest or exhaust any right or
take any action against the Guarantor, the Seller or any other person or
entity (including, without limitation, any other obligor or guarantor) or
any collateral securing the Seller Obligations.
Section 1.4 Remedies and Waivers. No remedy herein conferred upon or
reserved to any Beneficiary is intended to be exclusive of any other available
remedy or remedies, but each and every such remedy shall be cumulative and shall
be in addition to every other remedy given under this Agreement or now or
hereafter existing at law or in equity or by statute. No waiver of any of the
provisions of this Agreement shall: (a) be valid unless evidenced by a writing
executed by each party (whether the Guarantor or a Beneficiary) to be bound
thereby, (b) constitute or be deemed to constitute a waiver of any other
provision of this Agreement or any provisions of the Purchase Agreement (whether
or not similar), or (c) constitute or be deemed to constitute a continuing
waiver unless otherwise expressly provided. No delay on the part of any
Beneficiary in exercising any right or remedy hereunder shall operate as a
waiver thereof, nor shall any single or partial exercise of any power or right
preclude other or further exercise thereof or the exercise of any other right or
remedy. No notice to or demand on the Guarantor in any case shall entitle it to
any other or further notice or demand in the same or similar circumstances
except to the extent expressly required by the Purchase Agreement.
Section 1.5 No Set-off by Guarantor. No set-off, abatement, recoupment,
counterclaim, reduction or diminution of a Guaranty Obligation, or any defense
of any kind or nature which the Guarantor has or may have with respect to a
Guaranty Obligation (other than the complete fulfillment, performance or
satisfaction of such Guaranty Obligation) shall be available hereunder to the
Guarantor against the Depositor or any Other Beneficiary; provided, however,
that the Guarantor shall be entitled to, except to the extent it arises out of
the bankruptcy or insolvency of the Seller, any right of set-off, abatement,
recoupment, counterclaim, reduction or diminution of any Seller Obligation, or
any equitable defense of any kind or nature to which the Seller is entitled with
respect to any Seller Obligation.
Section 1.6 Binding Nature of Certain Adjudications. The Guarantor shall be
conclusively bound by the final non-appealable adjudication in any action or
proceeding, legal or otherwise, involving any controversy arising under, in
connection with, or in any way
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<PAGE>
relating to, any of the Seller Obligations, and by a final judgment, award or
decree entered therein, provided, in any case, that the Guarantor shall have had
the right, or shall have been given the opportunity, to participate in such
action or proceeding and shall have been given written notice of such action or
proceeding in time to exercise such right or avail itself of such opportunity.
Section 1.7 Costs. The Guarantor agrees to indemnify the Depositor and each
of the Other Beneficiaries for, and shall pay, all costs, expenses and fees,
including all reasonable attorneys' fees and expenses, which may be incurred by
any Beneficiary in enforcing or attempting to enforce a valid claim under this
Agreement following any default on the part of the Guarantor hereunder, whether
the same shall be enforced by suit or otherwise.
Section 1.8 Interest. If the Guarantor shall fail to make in immediately
available funds any payment required to be made hereunder when due, the
Guarantor shall pay interest on the amount of such payment from and including
the date due to the date of payment at an annual rate equal to two percentage
points above the "Federal funds effective rate" as published on Reuters Screen
118, as such "Federal funds effective rate" may change from time to time.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE GUARANTOR
Section 2.1 Representations and Warranties of the Guarantor. The Guarantor
represents and warrants that:
(a) The Guarantor is a corporation duly organized, validly existing and in
good standing under the laws of the State of Delaware. The Guarantor has the
full power and authority, corporate or otherwise, to guaranty the Seller
Obligations and has the power, authority, franchises and licenses (i) to own its
properties and assets and to carry on and conduct its business and (ii) to
execute, enter into and deliver this Agreement and to perform all of its
obligations hereunder. The execution, delivery and performance of this Agreement
by the Guarantor have been duly authorized by all necessary corporate,
shareholder or other action, and this Agreement has been duly and validly
executed and delivered by the Guarantor and is legal, valid and binding on and
enforceable against the Guarantor in accordance with its terms except as such
enforceability may be subject to applicable bankruptcy, insolvency and similar
laws affecting creditors' rights generally and to general principles of equity.
Any requisite consents of third parties to the execution and delivery of this
Agreement and the performance of the obligations or transactions contemplated
hereby have been obtained.
(b) Neither the execution or delivery of this Agreement, nor the
consummation of the transactions contemplated hereby, nor the compliance with or
performance of the terms and conditions of this Agreement by the Guarantor is
prevented by, limited by, conflicts with or will result in a breach or violation
of or a default under the terms, conditions or provisions of (i) its certificate
of incorporation or by-laws, (ii) any material mortgage, security agreement,
indenture, loan agreement or other agreement or instrument to which the
Guarantor
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<PAGE>
is a party or by which it is bound or (iii) any provision of law, any order of
any court or administrative agency or any rule or regulation applicable to the
Guarantor or its business. As of the date hereof, the Guarantor is not in
default under or in violation of any of its material obligations under any
material contract, agreement or undertaking to which it is a party or by which
it is bound.
(c) As of the date hereof, there is no action, proceeding or investigation
pending with regard to which the Guarantor has received service of process or,
to the Guarantor's knowledge, threatened against the Guarantor before any court
or administrative agency that, in the reasonable and good faith judgment of the
Guarantor, may (i) materially and adversely affect the ability of the Guarantor
to perform its obligations under this Agreement, (ii) result in any material
adverse change in the business, properties, assets or financial condition of the
Guarantor, or (iii) adversely affect the enforceability of this Agreement.
(d) As of the date hereof, the Guarantor is the owner, directly or
indirectly, of 100% of the issued and outstanding membership interests of the
Seller.
ARTICLE III
MISCELLANEOUS
Section 3.1 Obligations Arise on Delivery of the Mortgage Loans. The
Guaranty Obligations hereunder shall arise absolutely and unconditionally
effective as of the Closing Date or, insofar as the Guaranty Obligations relate
to Section 9 of the Purchase Agreement, effective as of the date hereof.
Section 3.2 Survival. All warranties, representations, covenants and
obligations made by the Guarantor herein shall be deemed to have been relied
upon by the Depositor and shall survive the delivery to the Beneficiaries of
this Agreement, regardless of any investigations made by or on behalf of any
Beneficiary, until such time as the Seller Obligations shall have been
discharged pursuant to the Purchase Agreement and the Guaranty Obligations shall
have been discharged pursuant to this Agreement.
Section 3.3 Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the Guarantor, the Depositor and the Other
Beneficiaries and upon the respective successors, assigns, estates, heirs,
executors and administrators of the Guarantor, the Depositor and the Other
Beneficiaries; provided, however, that, except as contemplated by the next two
sentences, (a) the Guarantor may not assign or delegate any of its obligations
hereunder without the prior written consent of the Depositor and each Other
Beneficiary, or their respective successors and assigns, which consent shall not
be unreasonably withheld so long as (i) the then current net worth of the
assignee is no less than the then current net worth of the Guarantor and (ii)
the assignee makes the representations and warranties set forth in Sections
2.1(a), (b) and (c) (with such reasonable modifications as the circumstances
require, none of which modifications materially and adversely affect the
Beneficiaries), and (b) each
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<PAGE>
Beneficiary shall be entitled to assign its respective rights hereunder only to
an affiliate. If the Depositor assigns to any party any of its rights under the
Purchase Agreement in respect of any Seller Obligations in accordance with the
Purchase Agreement, it may also assign to the same party its rights hereunder in
respect of the corresponding Guaranty Obligations. In addition, any entity into
which the Guarantor or any Beneficiary may be merged or consolidated, or any
entity resulting from any merger, conversion or consolidation to which the
Guarantor or any Beneficiary is a party, or any person succeeding to all or
substantially all of the business of the Guarantor or any Beneficiary, shall be
the successor hereunder to the Guarantor or such Beneficiary, as the case may
be.
Section 3.4 Notices. All notices, certificates, demands or other
communications hereunder shall be sufficiently given and shall be deemed given
when mailed by registered or certified mail, return receipt requested, postage
prepaid, addressed as follows:
(a) If to the Guarantor:
ContiFinancial Corporation
277 Park Avenue
New York, New York 10172
Attention: Chief Counsel
(b) If to the Depositor:
Morgan Stanley Capital I Inc.
1585 Broadway
New York, New York 10036
Attention: Russell Rahbany
The Guarantor and the Depositor each may, by notice given hereunder,
designate any further or different addresses to which subsequent notices,
certificates, demands or communications shall be sent.
Section 3.5 Entire Agreement. This Agreement constitutes the entire
agreement and supersedes all prior and contemporaneous agreements,
understandings, negotiations and discussions, whether oral or written, of the
parties with respect to the subject matter hereof except as specifically set
forth or incorporated herein.
Section 3.6 Amendments, Changes and Modifications. No term or provision of
this Agreement may be amended, waived, changed, modified, altered, released or
terminated in any manner unless such amendment, waiver, change, modification,
alteration release or termination is in writing and signed by the party (whether
the Guarantor or a Beneficiary) against whom such amendment, waiver, change,
modification, alteration, release or termination is sought to be enforced.
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<PAGE>
Section 3.7 Severability. The invalidity or unenforceability of any one or
more phrases, sentences, paragraphs or Sections in this Agreement shall not
affect the validity or enforceability of the remaining portions of this
Agreement or any part thereof.
Section 3.8 Governing Law. This Agreement and the rights, duties,
obligations and responsibilities of the Guarantor shall be governed in
accordance with the internal laws and decisions of the State of New York. The
Guarantor and the Beneficiaries intend that the provisions of Section 5-1401 of
the New York General Obligations Law shall apply to this Agreement.
Section 3.9 Headings; Interpretation. Section and paragraph headings are
not to be considered part of this Agreement, are included solely for convenience
and are not intended to be full or accurate descriptions of the contents
thereof. Sections and paragraphs mentioned by number only are the respective
sections and paragraphs of this Agreement. The use of the terms "herein",
"hereunder", "hereof", and like terms shall be deemed to refer to this entire
Agreement and not merely to the particular provision in which the term is
contained, unless the context clearly indicates otherwise.
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<PAGE>
IN WITNESS WHEREOF, the Guarantor has caused this Agreement to be duly
executed and delivered, all as of the date first above written.
CONTIFINANCIAL CORPORATION
By: /s/ Susan E. O'Donovan
------------------------------
Name: Susan E. O'Donovan
Title: Authorized Signatory
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