SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): March 27, 1998
MORGAN STANLEY CAPITAL I INC.
(Exact name of registrant as specified in its charter)
DELAWARE 333-45467 13-3291626
(State or Other (Commission File Number) (I.R.S. Employer
Jurisdiction Incorporation Identification Number)
---------------------------
1585 Broadway
2nd Floor
New York, New York 10036
(principal executive offices)
(212) 761-4000
Item 2. ACQUISITION OR DISPOSITION OF ASSETS
On March 27, 1998, a single series of certificates, entitled Morgan Stanley
Capital I Inc. Commercial Mortgage Pass-Through Certificates, Series 1998-HF1
(the "Certificates"), was issued pursuant to a pooling and servicing agreement
dated as of March 1, 1998 (the "Pooling and Servicing Agreement"), attached
hereto as Exhibit 4.1, among Morgan Stanley Capital I Inc. (the "Depositor") as
depositor, AMRESCO Services, L.P., as master servicer, Lennar Partners, Inc., as
special servicer, LaSalle National Bank, as Trustee and ABN Amro Bank N.V., as
fiscal agent. The Certificates consist of sixteen classes identified as the
"Class A1 Certificates", the "Class A2 Certificates", the "Class X
Certificates", the "Class B Certificates", the "Class C Certificates", the
"Class D Certificates", the "Class E Certificates", the "Class F Certificates",
the "Class G Certificates", the "Class H Certificates", the Class J
Certificates", the "Class K Certificates", the "Class L 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") consisting primarily of a segregated pool (the "Mortgage Pool") of 351
fixed rate, multifamily and commercial mortgage loans (the "Mortgage Loans")
having, as of the close of business on March 1, 1998 (the "Cut-off Date"), an
aggregate principal balance of $1,283,705,560, after taking into account all
payments of principal due on the Mortgage Loans on or before such date, whether
or not received.
The Class A1 Certificates have an initial Class Principal Balance of
$224,800,000. The Class A2 Certificates have an initial Class Principal Balance
of $696,258,000. The Class X Certificates have an initial Class Notional Amount
of $1,283,705,560. The Class B Certificates have an initial Class Principal
Balance of $67,395,000. The Class C Certificates have an initial Class Principal
<PAGE>
Balance of $64,185,000. The Class D Certificates have an initial Class Principal
Balance of $64,185,000. The Class E Certificates have an initial Class Principal
Balance of $25,674,000. The Class F Certificates have an initial Class Principal
Balance of $51,349,000. The Class G Certificates have an initial Class Principal
Balance of $19,255,000. The Class H Certificates have an initial Class Principal
Balance of $12,837,000. The Class J Certificates have an initial Class Principal
Balance of $25,674,000. The Class K Certificates have an initial Class Principal
Balance of $9,628,000. The Class L Certificates have an initial Class Principal
Balance of $22,465,560. Capitalized terms used and not otherwise defined herein
shall have the meanings assigned to them in the Pooling and Servicing Agreement.
Item 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION AND EXHIBITS
(a) Financial Statements of Business Acquired
Not applicable.
(b) Pro Forma Financial Information
Not applicable.
(c) Exhibits.
Exhibit No.
of Item 601 of
Exhibit No. Regulation S-K Description
- ----------- -------------- -----------
4.1 4 Pooling and Servicing Agreement dated as
of March 1, 1998 among Morgan Stanley
Capital I Inc. as depositor, AMRESCO
Services, L.P., as master servicer,
Lennar Partners, Inc., as special
servicer, LaSalle National Bank, as
trustee, and ABN Amro Bank N.V., as
fiscal agent.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
Dated: March 31, 1998
MORGAN STANLEY CAPITAL I INC.
By: /s/ Russell Rahbany
--------------------------------
Name: Russell Rahbany
Title: Vice President
- --------------------------------------------------------------------------------
MORGAN STANLEY CAPITAL I INC.,
AS DEPOSITOR,
AND
AMRESCO SERVICES, L.P.,
AS MASTER SERVICER,
AND
LENNAR PARTNERS, INC.,
AS 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, 1998
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 1998-HF1
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TABLE OF CONTENTS
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Page
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ARTICLE I. DEFINITIONS...........................................................................................4
Section 1.1. Definitions..........................................................................................4
Section 1.2. Certain Calculations in Respect of the Mortgage Pool................................................46
Section 1.3. Interpretation......................................................................................47
ARTICLE II. DECLARATION OF TRUST; ISSUANCES OF CERTIFICATES.....................................................48
Section 2.1. Conveyance of Mortgage Loans........................................................................48
Section 2.2. Acceptance by Trustee...............................................................................50
Section 2.3. Sellers' Repurchase of Mortgage Loans for Document Defects and Breaches of
Representations and Warranties.........................................................................51
Section 2.4. Representations and Warranties......................................................................52
Section 2.5. Conveyance of Interests.............................................................................53
ARTICLE III. THE CERTIFICATES...................................................................................54
Section 3.1. The Certificates....................................................................................54
Section 3.2. Registration........................................................................................55
Section 3.3. Transfer and Exchange of Certificates...............................................................55
Section 3.4. Mutilated, Destroyed, Lost or Stolen Certificates...................................................62
Section 3.5. Persons Deemed Owners...............................................................................62
Section 3.6. Book-Entry Certificates.............................................................................62
Section 3.7. Notices to Clearing Agency..........................................................................63
Section 3.8. Definitive Certificates.............................................................................63
ARTICLE IV. ADVANCES............................................................................................64
Section 4.1. P&I Advances by Master Servicer.....................................................................64
Section 4.2. Servicing Advances..................................................................................65
Section 4.3. Advances by Trustee and Fiscal Agent................................................................66
Section 4.4. Evidence of Nonrecoverability.......................................................................67
Section 4.5. Advance Interest....................................................................................68
Section 4.6. Merger or Consolidation of Fiscal Agent.............................................................68
Section 4.7. Limitation on Liability of the Fiscal Agent and Others..............................................68
Section 4.8. Indemnification of Fiscal Agent.....................................................................69
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ARTICLE V. COLLECTION ACCOUNT; DISTRIBUTION ACCOUNT; CERTAIN TRUSTEE REPORTS....................................70
Section 5.1. Collection Account..................................................................................70
Section 5.2. Application of Funds in the Collection Account......................................................72
Section 5.3. Distribution Account................................................................................75
Section 5.4. Trustee Reports; Access to Information..............................................................76
Section 5.5. Trustee Tax Reports.................................................................................79
ARTICLE VI. DISTRIBUTIONS.......................................................................................80
Section 6.1. Distributions Generally.............................................................................80
Section 6.2. REMIC I.............................................................................................81
Section 6.3. REMIC II............................................................................................82
Section 6.4. REMIC III...........................................................................................85
Section 6.5. Allocation of Realized Losses and Expense Losses....................................................90
Section 6.6. Appraisal Reductions................................................................................91
Section 6.7. Compliance with Withholding Requirements............................................................92
ARTICLE VII. CONCERNING THE TRUSTEE AND THE FISCAL AGENT........................................................92
Section 7.1. Duties of Trustee and the Fiscal Agent..............................................................92
Section 7.2. Certain Matters Affecting the Trustee and the Fiscal Agent..........................................93
Section 7.3. Trustee and Fiscal Agent Not Liable for Certificates or Interests or Mortgage Loans.................95
Section 7.4. Trustee and the Fiscal Agent May Own Certificates...................................................96
Section 7.5. Eligibility Requirements for Trustee and Fiscal Agent...............................................96
Section 7.6. Resignation and Removal of Trustee or Fiscal Agent..................................................96
Section 7.7. Successor Trustee or Fiscal Agent...................................................................98
Section 7.8. Merger or Consolidation of Trustee..................................................................99
Section 7.9. Appointment of Co-Trustee, Separate Trustee or Custodian...........................................99
Section 7.10. Authenticating Agents.............................................................................101
Section 7.11. Indemnification...................................................................................102
Section 7.12. Fees and Expenses of Trustee and Fiscal Agent.....................................................103
Section 7.13. Collection of Moneys..............................................................................103
Section 7.14. Notification to Holders...........................................................................104
Section 7.15. Representations and Warranties of Trustee and Fiscal Agent........................................104
Section 7.16. Fiscal Agent Termination Event....................................................................106
Section 7.17. Procedure Upon Termination Event..................................................................107
ARTICLE VIII. ADMINISTRATION AND SERVICING OF MORTGAGE LOANS...................................................108
Section 8.1. Servicing Standard; General Powers and Duties......................................................108
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Section 8.2. Collection of Mortgage Loan Payments...............................................................110
Section 8.3. Collection of Taxes, Assessments and Similar Items; Servicing Accounts and Reserve
Accounts..............................................................................................111
Section 8.4. Sub-Servicing Agreements...........................................................................112
Section 8.5. Maintenance of Insurance Policies; Errors and Omissions and Fidelity Coverage......................114
Section 8.6. Enforcement of Due-On-Sale Clauses; Assumption Agreements; Subordinate Financing...................116
Section 8.7. Realization Upon Defaulted Mortgage Loans..........................................................118
Section 8.8. Trustee to Cooperate; Release of Mortgage Files....................................................120
Section 8.9. Documents, Records and Funds in Possession of Master
Servicer or Special Servicer to be Held for Trustee for the Benefit of
Certificateholders....................................................................................121
Section 8.10. Servicing Compensation............................................................................122
Section 8.11. Master Servicer Reports; Account Statements.......................................................124
Section 8.12. Annual Statement as to Compliance.................................................................125
Section 8.13. Annual Independent Public Accountants' Servicing Report...........................................125
Section 8.14. Certain Reports Regarding the Mortgage Loans and the Mortgaged Properties.........................126
Section 8.15. Certain Available Information and Related Rights of the Master Servicer and the
Special Servicer......................................................................................129
Section 8.16. Rule 144A Information.............................................................................131
Section 8.17. Inspections; Collection of Financial Statements...................................................131
Section 8.18. Modifications, Waivers, Amendments, Extensions and Consents.......................................132
Section 8.19. Title to REO Property.............................................................................136
Section 8.20. Management of REO Property........................................................................137
Section 8.21. Additional Obligations of the Master Servicer.....................................................139
Section 8.22. Representations, Warranties and Covenants of the Master Servicer and the Special
Servicer..............................................................................................140
Section 8.23. Merger or Consolidation...........................................................................143
Section 8.24. Resignation of Master Servicer or Special Servicer................................................143
Section 8.25. Assignment or Delegation of Duties by Master Servicer or the Special Servicer.....................144
Section 8.26. Limitation on Liability of Master Servicer, Special Servicer and Others...........................144
Section 8.27. Indemnification; Third-Party Claims...............................................................145
Section 8.28. Tax Reporting.....................................................................................147
Section 8.29. Certain Special Servicer Reports..................................................................147
Section 8.30. Qualification to Service..........................................................................149
Section 8.31. Sale of Defaulted Mortgage Loans and REO Properties...............................................149
Section 8.32. Operating Adviser; Elections......................................................................151
Section 8.33. Duties of Operating Adviser.......................................................................151
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Section 8.34. Exchange Act Reporting............................................................................152
ARTICLE IX. DEFAULT............................................................................................153
Section 9.1. Events of Default..................................................................................153
Section 9.2. Trustee to Act; Appointment of Successor...........................................................155
Section 9.3. Notification to Certificateholders.................................................................156
Section 9.4. Waiver of Events of Default........................................................................156
ARTICLE X. PURCHASE AND TERMINATION OF THE TRUST...............................................................157
Section 10.1. Termination of Trust..............................................................................157
Section 10.2. Procedure Upon Termination of Trust...............................................................158
Section 10.3. Additional Trust Termination Requirements.........................................................159
ARTICLE XI. RIGHTS OF CERTIFICATEHOLDERS.......................................................................160
Section 11.1. Limitation on Rights of Holders...................................................................160
Section 11.2. Access to List of Holders.........................................................................161
Section 11.3. Acts of Holders of Certificates...................................................................161
ARTICLE XII. REMIC ADMINISTRATION..............................................................................162
Section 12.1. REMIC Administration..............................................................................162
Section 12.2. Prohibited Transactions and Activities............................................................167
Section 12.3. Liability with Respect to Certain Taxes and Loss of REMIC Status..................................168
Section 12.4. Modifications of Mortgage Loans...................................................................168
ARTICLE XIII. MISCELLANEOUS PROVISIONS.........................................................................169
Section 13.1. Binding Nature of Agreement.......................................................................169
Section 13.2. Entire Agreement..................................................................................169
Section 13.3. Amendment.........................................................................................169
Section 13.4. GOVERNING LAW.....................................................................................170
Section 13.5. Notices...........................................................................................170
Section 13.6. Severability of Provisions........................................................................171
Section 13.7. Indulgences; No Waivers...........................................................................171
Section 13.8. Headings Not to Affect Interpretation.............................................................171
Section 13.9. Benefits of Agreement.............................................................................171
Section 13.10. Special Notices to the Rating Agencies...........................................................171
Section 13.11. Counterparts.....................................................................................173
Section 13.12. Intention of Parties.............................................................................173
Section 13.13. Recordation of Agreement.........................................................................174
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EXHIBITS
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Exhibit A-1 Form of Class A1 Certificate.....................................A-1
Exhibit A-2 Form of Class A2 Certificate.....................................A-2
Exhibit A-3 Form of Class B Certificate......................................A-3
Exhibit A-4 Form of Class C Certificate......................................A-4
Exhibit A-5 Form of Class D Certificate......................................A-5
Exhibit A-6 Form of Class E Certificate......................................A-6
Exhibit A-7 Form of Class F Certificate......................................A-7
Exhibit A-8 Form of Class G Certificate......................................A-8
Exhibit A-9 Form of Class H Certificate......................................A-9
Exhibit A-10 Form of Class J Certificate.....................................A-10
Exhibit A-11 Form of Class K Certificate.....................................A-11
Exhibit A-12 Form of Class L 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 X Certificate.....................................A-16
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 Form of Purchaser's Letter.........................................D
Exhibit E Form of Transferor Certificate for Transfers of
REMIC Residual Certificate........................................E
Exhibit F Form of Transfer Affidavit and Agreement for
Transfers of REMIC Residual Certificates..........................F
Exhibit G-1 Form of Monthly Certificateholder Report.........................G-1
Exhibit G-2 Form of Specially Serviced Asset Report..........................G-2
Exhibit H-1 Comparative Financial Status Report..............................H-1
Exhibit H-2 Delinquent Loan Status Report....................................H-2
Exhibit H-3 Historical Loan Modification Report..............................H-3
Exhibit H-4 Historical Loss Estimate Report..................................H-4
Exhibit H-5 REO Status Report................................................H-5
Exhibit H-6 Watch List ......................................................H-6
Exhibit H-7 Operating Statement Analysis.....................................H-7
Exhibit H-8 NOI Adjustment Worksheet ........................................H-8
Exhibit H-9 CSSA Reports ....................................................H-9
Exhibit H-10 CSSA Reports ...................................................H-10
Exhibit H-11 CSSA Reports ...................................................H-11
SCHEDULES
Schedule I MSMC Loan Schedule.................................................I
Schedule II Heller Loan Schedule..............................................II
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<PAGE>
THIS POOLING AND SERVICING AGREEMENT is dated and effective as of March 1, 1998
(this "Agreement") among MORGAN STANLEY CAPITAL I INC., as depositor (the
"Depositor"), AMRESCO SERVICES, L.P., as master servicer (the "Master
Servicer"), LENNAR PARTNERS, INC., as special servicer (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
Heller Financial Capital Funding, Inc., as seller ("Heller" and, in such
capacity, 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 hereby creates the Trust and appoints the Trustee to serve as
trustee of 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 described in the definition of "REMIC I"; (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.
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<PAGE>
REMIC I
As provided herein, the Trustee will make the election described in Section
12.1 hereof for the segregated pool of assets 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 represent the
right to receive principal corresponding to the initial Stated Principal Balance
of a related Mortgage Loan and interest thereon at a remittance rate (the "REMIC
I Remittance Rate") equal to the Net Mortgage Rate of the related Mortgage Loan
in effect as of the Closing Date. For purposes of Treasury regulation Section
1.860G-1 (a)(4)(iii), the "latest possible maturity date" for each REMIC I
Regular Interest shall be the Final Rated Distribution Date. The Class R-I
Certificates will represent 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 the election described in Section
12.1 hereof for the segregated pool of assets consisting of the REMIC I Regular
Interests to be treated for federal income tax purposes as a separate REMIC
(such particular pool of assets, "REMIC II"). The REMIC II Regular Interests
will be designated as representing the "regular interests" in REMIC II and the
Class R-II Certificates will be designated as representing the sole class of
"residual interests" in REMIC II for purposes of the REMIC Provisions.
Twelve separate uncertificated REMIC II Regular Interests will be issued
and are designated as the "regular interests" in REMIC II. 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. For purposes of Treasury regulation Section
1.860G-1(a)(4)(iii), the "latest possible maturity date" of each REMIC II
Regular Interest shall be the Final Rated Distribution 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
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REMIC II Regular Interests
- --------------------------------------------------------------------------------
REMIC II Initial Uncertificated
Designation Remittance Rate Principal Balance
- --------------------------------------------------------------------------------
A1 7.5939% $ 224,800,000
- --------------------------------------------------------------------------------
A2 7.5939% $ 696,258,000
- --------------------------------------------------------------------------------
B 7.5939% $ 67,395,000
- --------------------------------------------------------------------------------
C 7.5939% $ 64,185,000
- --------------------------------------------------------------------------------
D 7.5939% $ 64,185,000
- --------------------------------------------------------------------------------
E 7.5939% $ 25,674,000
- --------------------------------------------------------------------------------
F 7.5939% $ 51,349,000
- --------------------------------------------------------------------------------
G 7.5939% $ 19,255,000
- --------------------------------------------------------------------------------
H 7.5939% $ 12,837,000
- --------------------------------------------------------------------------------
J 7.5939% $ 25,674,000
- --------------------------------------------------------------------------------
K 7.5939% $ 9,628,000
- --------------------------------------------------------------------------------
L 7.5939% $ 22,465,560
- --------------------------------------------------------------------------------
REMIC III
As provided herein, the Trustee will make the election described in Section
12.1 for the segregated pool of assets hereof consisting of the REMIC II Regular
Interests to be treated for federal income tax purposes as a separate REMIC
(such particular pool of assets, "REMIC III"). The REMIC III Regular
Certificates will be designated as representing the "regular interests" in REMIC
III and the Class R-III Certificates will be designated as representing the sole
class of "residual interests" in REMIC III for purposes of the REMIC Provisions.
Thirteen separate Classes of REMIC III Regular Certificates will be issued.
The 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. For
purposes of 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 Final Rated Distribution 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
Certificates.
3
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REMIC III Regular Certificates
- --------------------------------------------------------------------------------
Initial Class
Designation Pass-Through Rate Principal Balance
- --------------------------------------------------------------------------------
Class A1 6.19% per annum $ 224,800,000
- --------------------------------------------------------------------------------
Class A2 6.52% per annum $ 696,258,000
- --------------------------------------------------------------------------------
Class X 1.22%(1) per annum $1,283,705,560(2)
- --------------------------------------------------------------------------------
Class B 6.58% per annum $ 67,395,000
- --------------------------------------------------------------------------------
Class C 6.75% per annum $ 64,185,000
- --------------------------------------------------------------------------------
Class D 7.10% per annum $ 64,185,000
- --------------------------------------------------------------------------------
Class E 7.60%(1) per annum $ 25,674,000
- --------------------------------------------------------------------------------
Class F 7.18% per annum $ 51,349,000
- --------------------------------------------------------------------------------
Class G 7.18% per annum $ 19,255,000
- --------------------------------------------------------------------------------
Class H 6.19% per annum $ 12,837,000
- --------------------------------------------------------------------------------
Class J 6.19% per annum $ 25,674,000
- --------------------------------------------------------------------------------
Class K 6.19% per annum $ 9,628,000
- --------------------------------------------------------------------------------
Class L 6.19% per annum $ 22,465,560
- --------------------------------------------------------------------------------
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 with respect to any Class of REMIC III
Regular Certificates (other than the Class X Certificates) for any Distribution
Date, the product of the Certificate Principal Balance of such Class as of the
close of the preceding Distribution Date (or, in the case of the first
Distribution Date, as of the Closing Date) and one-twelfth of the applicable
- ----------
(1) The Pass-Through Rates for the Class X Certificates and the Class E
Certificates are variable and, subsequent to the initial Distribution Date,
will be determined as described herein under the definition of
"Pass-Through Rate".
(2) For purposes of the REMIC Provisions, the Class X Certificates shall be
treated as comprised of twelve component interests, each related to a
separate uncertificated REMIC II Regular Interest. The Initial Class
Balance, which is a notional amount and does not represent an entitlement
to any distribution of principal, is the sum of the notional amounts of
such component interests as of the Closing Date.
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Pass-Through Rate; and with respect to the Class X Certificates, the Class X
Accrued Certificate Interest. The Accrued Certificate Interest in respect of
each Class of REMIC III Regular Certificates for each Distribution Date shall
accrue on the basis of a 360-day year consisting of twelve 30-day months.
"Act" shall have the meaning set forth in Section 11.3.
"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 not paid
out of Default Interest or Late Fees; (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 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.
"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" shall have the meaning set forth in Section 12.1(j).
"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.
"Agreement" means this Pooling and Servicing Agreement and all amendments
and supplements hereto.
5
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"Appraisal" means an appraisal by a Qualified Appraiser that is prepared in
accordance with 12 C.F.R. 225.64.
"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 from the initial maturity date, 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 6.6, 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. 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 of an internal valuation performed pursuant to Section
6.6, the value of such property determined by such internal valuation.
"Asset Status Report " has the meaning set forth in Section 8.29(c).
"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
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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 otherwise 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 (x) with respect to REMIC I and 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 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 are 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 Section 8.21(b); (y) with respect to
REMIC II and any Distribution Date, all amounts distributed on the REMIC I
Regular Interests; and (z) with respect to REMIC III and any Distribution Date,
all amounts distributed on the REMIC II Regular Interests.
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"Balloon Mortgage Loan" means 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.
"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.
"Bankruptcy Code" means, the federal bankruptcy code, as amended from time
to time (Title II of the United States Code).
"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."
"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.
"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 1998-HF1 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 X Notional Amount, as the case may be, and the
denominator of which is the related initial Class Principal Balance or initial
Class X Notional Amount, as the case may be, as of the Closing Date.
"Certificate Notional Amount" means, with respect to any Class X
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 X Notional Amount. For purposes of the REMIC Provisions, the Class X
Notional Amount may be described as the Sum of the Component Notional Amounts of
the Component Interests at such time.
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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 or alphanumerical class designation.
"Class A1 Certificates," "Class A2 Certificates," "Class X 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 K Certificates," "Class L
Certificates," "Class R-I Certificates," "Class R-II Certificates," and "Class
R-III Certificates" mean the Certificates designated as "Class A1," "Class A2,"
"Class X," "Class B," "Class C," "Class D," "Class E," "Class F," "Class G,"
"Class H," "Class J," "Class K," "Class L," "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-16 hereof.
"Class A Certificates" means the Class A1 Certificates and Class A2
Certificates, collectively.
"Class E Certificate Rate" means, with respect to any Distribution Date,
one-twelfth of (x) the REMIC II Remittance Rate minus (y) 0.17%.
"Class Interest Shortfall" means, with respect to any Class of Principal
Balance 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 Date pursuant to Section
6.4, and (b), to the extent permitted by applicable law, 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 Principal Balance Certificates, the interest
referred
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to in clause (b) of the preceding sentence shall accrue on the basis of a
360-day year consisting of twelve 30-day months.
"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 Distribution Date as provided in Section 6.5.
"Class X Accrued Certificate Interest" means, with respect to any
Distribution Date, the product of the Class X Notional Amount as of the close of
business on the preceding Distribution Date and one-twelfth of the Class X
Certificate Rate. For purposes of the REMIC Provisions, Class X Accrued
Certificate Interest, with respect to such Class and any Distribution Date, may
be expressed as the sum of the products of the Component Notional Amount of each
Component Interest on such Distribution Date and one-twelfth of the Component
Interest Rate for such Component Interest. Class X Accrued Certificate Interest
shall be calculated on the basis of a 360-day year consisting of twelve 30-day
months.
"Class X Certificate Rate" means, with respect to any Distribution Date,
the excess of (x) REMIC II Remittance Rate over (y) the weighted average of the
Pass-Through Rates of the Principal Balance Certificates (weighted on the basis
of their respective Certificate Balances on such Distribution Date).
"Class X Certificates" means the Class of Certificates, representing twelve
Classes of "regular interests" in REMIC III within the meaning of the REMIC
Provisions, that is entitled on each Distribution Date to receive Accrued
Certificate Interest for such Class, and, Prepayment Premiums collected during
the related period to the extent set forth in Section 6.4(c), and is designated
as Class X on the face thereof.
"Class X Notional Amount" means the notional principal amount by reference
to which the amount of interest payable to the Holders of the Class X
Certificates is computed and described, which, as of any date of determination,
is equal to the aggregate Class Principal Balances of the Principal Balance
Certificates on such date. For purposes of the REMIC Provisions, the Class X
Notional Amount may be expressed as the sum of the Component Notional Amounts of
all Component Interests of the Class X Certificates as of the date of
determination. The Class X Notional Amount does not represent a right to receive
distributions in respect of amount of principal from the Trust.
"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 27, 1998.
"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 applicable to the Trust or any REMIC Pool by reason of their
proposed effective dates.
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"Collection Account" has the meaning set forth in Section 5.1(a).
"Collection Period" means, with respect to any Distribution Date, the
period beginning (a) with respect to Monthly Payments, 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; and (b) with respect to all other collections on the
Mortgage Loans and REO Properties, on the day following the last day of the
previous Collection Period for such collections (or, in the case of the first
Distribution Date, the Cut-off Date) and ending on the earlier of the
Determination Date in the month in which the Distribution Date occurs and the
fourth Business Day prior to such Distribution Date.
"Comparative Financial Status Report": A report substantially containing
the content described in Exhibit H-1 attached hereto, setting forth, among other
things, the occupancy, revenue, net operating income or net cash flow, as
applicable, and Debt Service Coverage Ratio for each Mortgage Loan as of the
date of the latest financial information available immediately preceding the
preparation of such report for each of the following four periods (to the extent
such information is available): (i) the most current available year-to-date,
(ii) the most recent twelve months, (iii) the previous two full fiscal years,
and (iv) the "base year" (representing the original analysis of information used
as of the Cut-off Date); provided, however, that Debt Service Coverage Ratio
shall not be calculated for any Mortgaged Property for which twelve months of
operating information is not available (including for purposes of clause (i)).
For the purposes of the Master Servicer's production of any such report that is
required to state information for any period prior to the Cut-off Date, the
Master Servicer may conclusively rely (without independent verification), absent
manifest error, on information provided to it by the related Mortgage Loan
Seller.
"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(b) to cover Prepayment Interest Shortfalls.
"Component Interest" means any of the twelve component "regular interests"
(within the meaning of the REMIC Provisions) comprising the Class X
Certificates, each of which relates to a separate Class of REMIC II Regular
Interest and bears interest at the Component Interest Rate for such Class on a
notional amount equal to the Uncertificated Principal Balance of the Class of
REMIC II Regular Interests related to such Class (its "Component Notional
Amount"). The Component Interests are designated as Class A1X, Class A2X, Class
BX, Class CX, Class DX, Class EX, Class FX, Class GX, Class HX, Class JX, Class
KX and Class LX, which interests relate to REMIC II Regular Interest A1, A2, B,
C, D, E, F, G, H, J, K and L, respectively.
"Component Interest Rate" means, with respect to any Component Interest,
the per annum rate equal to the excess of the REMIC II Remittance Rate for its
related Class of REMIC II Regular Interest over the Pass-Through Rate for the
Class of Certificates bearing the same alphabetical designation as such
Component Interest's related Class of REMIC II Regular Interests.
"Component Notional Amount" shall have the meaning set forth in the
definition of "Component Interest".
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"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.
"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 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 L 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 1625, Chicago, IL 60603, Attention: Asset-Backed
Securities Trust Services Group--Morgan Stanley Series 1998-HF1, 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.
CSSA Reports": With respect to the Mortgage Loans, data files which contain
the information substantially in the forms of the CSSA standard reporting
package attached as Exhibits H-9, H-10 and H-11, as the same may be modified
from time to time.
"Current Principal Distribution Amount" means with respect to the Mortgage
Loans for any Distribution Date, an amount equal to the aggregate of:
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(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, 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) 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) 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, 1998.
"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 & 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 H.
"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) or as to which the Master Servicer has made a determination that
such Mortgage Loan's becoming so delinquent is imminent.
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"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.
"Defaulting Party" has the meaning set forth in Section 9.1(b).
"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 Bankruptcy Code, as amended from time to time, and that reduces the amount
the Mortgagor is required to pay under such Mortgage Loan.
"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 is or are substituted.
"Delinquent Loan Status Report": A report substantially containing the
content described in Exhibit H-2 attached hereto, setting forth, among other
things, those Mortgage Loans which, as of the close of business on the Due Date
immediately preceding the preparation of such report, were delinquent 1
Collection Period, delinquent 2 Collection Periods, delinquent 3 Collection
Periods or more, current but specially serviced, or were in foreclosure but were
not REO Property.
"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 27,
1998, by and among the Depositor, the Trustee and the Depository.
"Determination Date" means, with respect to any Distribution Date, the
tenth day of the month in which such Distribution Date occurs (or, if such tenth
day is not a Business Day, the Business Day immediately preceding such tenth
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
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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(c).
"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), (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 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, 1998.
"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
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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.
"Eligible Account" means (i) an account or accounts maintained with a
federal or state chartered depository institution or trust company the
short-term unsecured debt obligations or commercial paper of which are rated at
least "D-1" by DCR and "A-1" by S&P in the case of accounts in which funds are
held for thirty days or less (or, in the case of accounts in which funds are
held for more than thirty days, the long-term unsecured debt obligations are
rated at least "AA-" by DCR and "AA-" by S&P 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 S&P and at least one other nationally recognized
statistical rating organization), 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 15 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 (subject to Rating Agency Confirmation). 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 be an Eligible Investment only if Rating Agency
Confirmation is obtained with respect to such investment;
(ii) demand, time or similar deposits in, certificates of deposit of,
money market deposit accounts 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 "A-1+"
by S&P or the long-term unsecured debt obligations of such depository
institution or trust company have been assigned a rating by each Rating
Agency at least equal "AA" or,
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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 each Rating Agency, 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 5% 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 payable on demand or on a
specified date not more than one year after the date of issuance thereof),
and (A) rated "D-1+" by DCR and "A-1+" by S&P;
(vi) [Reserved];
(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 DCR and S&P (if rated by DCR or, if not rated by DCR,
by S&P and another nationally recognized statistical rating organization);
(viii) any money market funds rated "AAAm" or "AAAm-G" (or its
equivalent rating) by S&P and "AAA" by DCR (if rated by DCR or, if not
rated by DCR, by S&P 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,
earning a return "in the nature of interest" within the meaning of Treasury
Regulation Section 1.860G-2(g)(i) (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 treated as "permitted investments" that are "cash
flow investments" under Code Section 860G(a)(5);
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provided (A) such investment is held for a temporary period pursuant to
Section 1.860G-2(g)(i) 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 or (3) if it is not
treated as a "permitted investment" that is a "cash flow investment" under
Code Section 860G(a)(5); and provided, further, that any such instrument
shall have a maturity date no later than the date such instrument is
required to be used to satisfy the obligations under this Agreement, and,
in any event, shall not have a maturity in excess of one year; any such
instrument must have a predetermined fixed dollar of principal due at
maturity that cannot vary or change; if rated, the obligation must not have
an "r" highlighter affixed to its rating; 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. 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, in all cases, "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 a "Phase I Assessment" conducted in
accordance with ASTM Standard E 1527-93 or any successor thereto published by
ASTM.
"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 30/360 Rate" means with respect to a Mortgage Loan on which
interest is computed on a basis other than a 360-day year consisting of twelve
30-day months, the per annum rate at which interest would have to accrue on the
Stated Principal Balance of such Mortgage Loan 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
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Uncertificated Accrued Interest in respect of the REMIC I Regular Interest
corresponding to such Mortgage Loan in respect of 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).
"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 that was not otherwise subject to a Servicing Advance
or was the subject of a determination that such Servicing Advance, if made,
would be nonrecoverable.
"FDIC" means the Federal Deposit Insurance Corporation or any successor
thereto.
"Final Purchaser" has the meaning set forth in Section 10.1.
"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 March 15, 2030.
"Final Recovery Determination" means a determination by the Special
Servicer with respect to any defaulted Mortgage Loan or REO Property 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 7.16.
"FNMA" means the Federal National Mortgage Association, or any successor
thereto.
"Global Certificate" has the meaning set forth in Section 3.6.
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"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 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 that would, if classified as unusable, be included in the
foregoing definition.
"Heller" means Heller Financial Capital Funding, Inc. or its successor in
interest.
"Heller Loans" means, collectively, those Mortgage Loans sold to the
Depositor pursuant to Mortgage Loan Purchase Agreement II and shown on Schedule
II hereto.
"Historical Loan Modification Report": A report substantially containing
the content described in Exhibit H-3 attached hereto, setting forth, among other
things, those Mortgage Loans which, as of the close of business on the Due Date
immediately preceding the preparation of such report, have been modified
pursuant to this Agreement (i) during the related Collection Period and (ii)
since the Cut-off Date showing the original and the revised terms thereof.
"Historical Loss Estimate Report": A report substantially containing the
content described in Exhibit H-4 attached hereto, setting forth, among other
things, as of the close of business on the Due Date immediately preceding the
preparation of such report, (i) the aggregate amount of Liquidation Proceeds and
Liquidation Expenses, both for the current period and historically, and (ii) the
amount of Realized Losses occurring during the related Collection Period and
historically, set forth on a Mortgage Loan-by-Mortgage Loan basis.
"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 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.
"Hyper-Amortization Date" means as to any Mortgage Loan the date prior to
the stated maturity thereof that the Mortgage Rate and the rate of principal
amortization increases.
"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
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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
herein contemplated to be taken by an Independent Contractor will neither cause
such REO Property to cease to qualify as "foreclosure property" within the
meaning of Section 860G(a)(8) of the Code (determined without regard to the
exception applicable for Section 860D(a) of the Code) nor cause any income
realized in respect of such REO Property to fail to qualify as Rents from Real
Property.
"Initial Certification" has the meaning set forth in Section 2.2.
"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 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 the Class X Certificates.
"Interested Person" means, as of any date of determination, the Master
Servicer, the Special Servicer, the Depositor, the Operating Adviser, any
Certificateholder, any Certificate Owner or any Person known to a Responsible
Officer of the Trustee to be an Affiliate of any of them.
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"Issue Price" means, with respect to each Class of Certificates, REMIC I
Regular Interests and REMIC II Regular Interests, 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 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.
"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.
"Legended Definitive Certificate" means a Definitive Certificate bearing
the Securities Legend.
"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 7 of the related Mortgage Loan Purchase 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 any
Person entitled to effect an optional termination of the Trust pursuant to
Section 10.1), a fee in an amount equal to the product of (x) 1.0%, (y) a
fraction, the numerator of which is equal to the Liquidation Proceeds received
in connection with a final disposition of a Specially Serviced Mortgage Loan or
REO Property and the denominator of which is equal to the unpaid principal
balance of the related Mortgage Loan or REO Property and accrued and unpaid
interest thereon and (z) the related Liquidation Proceeds.
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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-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.
"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 12.3.
"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) 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 AMRESCO Services, L.P. or any successor master
servicer appointed as provided herein.
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"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
indicated on the Mortgage Loan Schedule.
"Material Defect" has the meaning set forth in Section 2.3(a).
"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, 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.
"Memorandum" means the private placement memorandum dated March 18, 1998,
relating to the Privately Offered Certificates.
"Minimum Maturity-Based Rating" has the meaning provided under the
definition of "Eligible Investments" herein.
"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 G-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 at the close of business on the related
Determination Date; (iv) the number and aggregate Stated
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Principal Balance of Mortgage Loans in the Mortgage Pool 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 latest appraised 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 X 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 applicable to each Class
of REMIC III Regular Certificates for such Distribution Date; (x) the aggregate
amount of servicing fees 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 (xiii) 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.
"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.
"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 1998-HF1, without
recourse";
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(ii) the original or a copy of the related recorded 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 recorded 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;
(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
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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) a recorded acknowledgment copy 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 remains 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 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 Purchase Agreement" means either of Mortgage Loan Purchase
Agreement I or Mortgage Loan Purchase Agreement II, as the case may be.
"Mortgage Loan Purchase Agreement I" means that certain Mortgage Loan
Purchase Agreement dated as of March 27, 1998, 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 27, 1998, between Heller and the Depositor,
with respect to the Heller Loans.
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"Mortgage Loan Schedule" or "Loan Schedule" means, collectively, the
schedules attached hereto as Schedule I, which identifies each MSMC Loan and
Schedule II, which identifies each Heller 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 fixed annualized rate at which interest is
scheduled (in the absence of default) to accrue on such Mortgage Loan from time
to time (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 or any acquisition of the
related Mortgaged Property as an REO Property, provided that in the case of a
Non-30/360 Mortgage Loan, the Mortgage Rate shall be determined in accordance
with this sentence assuming that interest is scheduled (in the absence of
default) to accrue on such Mortgage Loan at the Equivalent 30/360 Rate.
"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
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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(b) 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 equal to the related Mortgage Rate then in effect, minus the
applicable Master Servicing Fee Rate and Trustee 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.
"NOI Adjustment Worksheet": A report prepared by the Master Servicer or the
Special Servicer, as the case may be, substantially containing the content
described in Exhibit H-8 attached hereto, presenting the computations made in
accordance with the methodology described in such Exhibit H-8 to "normalize" the
full year net operating income and debt service coverage numbers used in the
other reports required by this Agreement, sent to the Trustee with each annual
operating statement for a Mortgaged Property pursuant to Section 8.14(d).
"Non-30/360 Mortgage Loan " means a Mortgage Loan 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
nationally recognized outside tax counsel addressed to the Trustee, reasonably
acceptable in form and substance to the Trustee, that a contemplated action will
neither cause (i) any REMIC Pool to fail to qualify as a REMIC at any time that
any Certificates are outstanding nor (ii) a gain on the disposition of a
Qualified Mortgage which would be subject to the 100% tax on "prohibited
transactions," imposed by Section 860F of the Code, nor (iii) any REMIC Pool to
be subject to any tax under the REMIC Provisions, except for any tax on net
income from foreclosure property as provided for herein.
"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, or, if applicable, the Trustee or Fiscal Agent,
will not be ultimately recoverable (together with Advance Interest thereon)
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from late payments, Insurance Proceeds, Condemnation Proceeds or Liquidation
Proceeds, or any other recovery on or in respect of such Mortgage Loan.
"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.
"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 Statement Analysis" means, with respect to each Mortgage Loan
and REO Mortgage Property, a report substantially containing the content
described in Exhibit H-7 attached hereto.
"Opinion of Counsel" means a written opinion of counsel addressed to the
Trustee, reasonably acceptable in form and substance to the Trustee, and which
may be from in-house or outside counsel to the party required to deliver such
opinion but which must be from 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.
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"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, 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 A1 Certificates, the Class A2 Certificates, the Class B
Certificates, the Class C Certificates, the Class D Certificates, the
Class F Certificates, the Class G Certificates, the Class H
Certificates, the Class J Certificates, the Class K Certificates and
the Class L Certificates, for any Distribution Date, the respective
fixed rates per annum specified as such in the Preliminary Statement;
and
(2) the Class X Certificates, for any Distribution Date, the Class X
Certificate Rate.
(3) the Class E Certificates, for any Distribution Date, the Class E
Certificate Rate.
"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, (i) 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
X Notional Amount, as the case may be, of the relevant Class as of the Closing
Date; and (ii) 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).
"Prepayment Assumption" means a CPR of 0%, 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
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REMIC I Regular Interests, the REMIC II Regular Interests or the REMIC III
Regular 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 such Collection Period, the amount of interest
at the related Net Mortgage Rate 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 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).
"Principal Balance Certificates" means, collectively, the REMIC III Regular
Certificates other than the Class X Certificates.
"Principal Distribution Amount" means, for any Distribution Date, the
aggregate of (i) the Current Principal Distribution Amount 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 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 that is received in advance of its scheduled Due Date and
that 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.
"Privately Offered Certificates" means, unless and until registered under
the Securities Act, the Class F, Class G, Class H, Class J, Class K, Class L and
Residual Certificates.
"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 Supplement" the Prospectus Supplement dated March 18, 1998
relating to the Publicly Offered Certificates.
"Publicly Offered Certificates" means the Class A1, Class A2, Class X,
Class B, Class C, Class D and Class E Certificates.
"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 to but not
including the Due Date in the Collection Period of purchase, (b) all related
unreimbursed Servicing Advances, and any Advance Interest payable on any Advance
hereunder accrued to the date of purchase on Advances and (c) if such Mortgage
Loan is being repurchased by a Seller pursuant to Section 7 of the related
Mortgage Loan Purchase Agreement, all expenses reasonably incurred or to be
incurred by the Master Servicer, the Special Servicer, the Depositor and the
Trustee in respect of the Breach or Material Defect giving rise to the
repurchase obligation. With respect to any REO Property, Purchase Price means
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 with at least five years experience in properties of like kind and in
the same area.
"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 a Mortgage Loan substituted for
a Deleted 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;
(iv) is accruing interest on the same basis as the Deleted Mortgage Loan (for
example, on the basis of a 360-day year consisting of twelve 30-day months); (v)
has a remaining term to stated maturity not greater than, and not more than two
years less than, that of the Deleted Mortgage Loan; (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
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received a written opinion of Independent outside tax counsel, reasonably
acceptable in form and substance to the Trustee, 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 such Mortgage
Loan shall be substituted for a Deleted Mortgage Loan if it has 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; and provided,
further 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;
and provided, further that no such Mortgage Loan shall be substituted for a
Deleted Mortgage Loan unless the Operating Adviser shall have approved of such
substitution based upon an engineering report and the Environmental Assessment
obtained with respect to such Mortgage Loan (provided, however, that such
approval of the Operating Adviser may not be unreasonably withheld, as
determined by the Special Servicer). 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.
"Rating Agencies" means DCR and S&P.
"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
then-current rating assigned by such Rating Agency to any Class of Certificates
then rated by such Rating Agency.
"Realized Loss" means (x) 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 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 and all unpaid Advance Interest on
all Advances, 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); (y) 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
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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; and (z) 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.
"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 included in the Trust created
hereby and to be administered hereunder, consisting of the Mortgage Loans, as
from time-to-time are subject to this Agreement, the Mortgage Files relating
thereto, all proceeds of and payments under such Mortgage Loans received after
the Closing Date, 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 acquired in respect of any Mortgage Loan, 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
uncertificated interest in REMIC I issued in respect of such Mortgage Loan
hereunder and designated as a "regular interest" in REMIC I. Each REMIC I
Regular Interest shall represent a right to receive interest at the related
REMIC I Remittance Rate and 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 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.
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"REMIC II" means the segregated pool of assets consisting of the REMIC I
Regular Interests and all distributions thereon conveyed to the Trustee for the
benefit of REMIC III and for which a separate 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(c).
"REMIC II Interests" means, collectively, the REMIC II Regular Interests
and the Class R-II Certificates.
"REMIC II Regular Interest" means any of the twelve separate uncertificated
beneficial interests in REMIC II issued hereunder and designated as a "regular
interest" in REMIC II. Each REMIC II Regular Interest shall represent a right to
receive interest at the related REMIC II Remittance Rate in effect from time to
time 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 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 each of REMIC II Regular
Interests A, B, C, D, E, F, G, H, J, K and L for any Distribution Date, the
Weighted Average REMIC I Remittance Rate.
"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(c).
"REMIC III Regular Certificate" means any REMIC III Certificate, other than
a Class R-III Certificate, and where appropriate with respect to a Class X
Certificate, may refer to the Component Interests thereof, as the case requires.
"REMIC Pool" means each of the three segregated pools of assets designated
as a REMIC pursuant to Section 12.1(a) hereof.
"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 Extension" has the meaning set forth in Section 8.19(a).
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"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 Sale Deadline" has the meaning set forth in Section 8.19(a).
"REO Status Report": A report substantially containing the content
described in Exhibit H-5 attached hereto, setting forth, among other things,
with respect to each REO Property that was included in the Trust Fund as of the
close of business on the Due Date immediately preceding the preparation of such
report, (i) the acquisition date of such REO Property, (ii) the amount of income
collected with respect to any REO Property net of related expenses and other
amounts, if any, received on such REO Property during the related Collection
Period and (iii) the value of the REO Property based on the most recent
appraisal or other valuation thereof available to the Special Servicer as of
such date of determination (including any prepared internally by the Special
Servicer).
"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 second Business Day before the related Distribution
Date.
"Repurchase Proceeds" means amounts paid by any Seller under the related
Mortgage Loan Purchase 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 continuing.
"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.
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"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.
"Rule 144A" means Rule 144A under the Securities Act.
"S&P" means Standard & Poor's Rating Services or any successor in interest.
"Securities Act" means the Securities Act of 1933, as amended.
"Securities Legend" means the legend to be printed on the Certificates as
set forth in Section 3.3(c).
"Seller" means MSMC or Heller, as the case may be.
"Senior Certificates" means, collectively, the Class A and Class X
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
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
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.
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"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 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 Lennar Partners, Inc. or any successor Special
Servicer as herein provided.
"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 G-2 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
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(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 under the related loan
documents, 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
(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 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, 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);
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(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 in 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.
"Stated Principal Balance" means, as of any date of determination, 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, Class J, Class K and Class L
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
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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 any REMIC Pool pursuant to Treasury Regulation Section 1.860F-4(d)
and temporary Treasury Regulations Section 301.6231(a)(7)-1T (or relevant
successor provision), which initially shall be the person having the largest
Percentage Interest in the Residual Certificates of the related REMIC Pool.
"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 pursuant to its election
filed in accordance with Section 5.5 hereof, 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.
"Termination Price" shall have the meaning set forth in Section 10.1(b)
herein.
"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.
"Trust" means the trust created pursuant to this Agreement, the assets
which consist of all the assets of REMIC I, REMIC II and REMIC III.
"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, with respect to each Mortgage Loan (including without
limitation each REO Mortgage Loan), the fee designated as such and payable to
the Trustee pursuant to Section 7.12.
"Trustee Fee Rate" means 0.0035% 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.
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"Uncertificated Accrued Interest" shall mean, with respect to any class of
uncertificated REMIC I Regular Interests or REMIC II Regular Interests for any
Distribution Date, the product of the Uncertificated Principal Balance of such
class as of the close of the preceding Distribution Date (or, in the case of the
first Distribution Date, as of the Closing Date) and one-twelfth of the
applicable REMIC I Remittance Rate or REMIC II Remittance Rate. The
Uncertificated Accrued Interest in respect of each class of REMIC I Regular
Interests and REMIC II Regular Interest shall accrue on the basis of a 360-day
year consisting of twelve 30-day months.
"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 one month's
interest (calculated on the basis of a 360-day year consisting of twelve 30-day
months) on such unpaid Uncertificated Distributable Interest 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 Principal Balance" means the principal amount of any REMIC
I Regular Interest or REMIC II Regular Interest 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 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 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 H hereto.
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"Underwriters" means Morgan Stanley & Co. Incorporated or its successor in
interest and Merrill Lynch, Pierce, Fenner & Smith 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, an estate 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 or a trust subject to
the control of a United States person and the primary supervision of a United
States court.
"Unlegended Definitive Certificate" means a Definitive Certificate that
does not bear the Securities Legend.
"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 to the Holders of the Interest Only 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.
"Watch List": A report substantially containing the content described in
Exhibit H-6 attached hereto, setting forth, among other things, any Mortgage
Loan that is in jeopardy of becoming a Specially Serviced Mortgage Loan.
"Weighted Average REMIC I Remittance Rate" means, with respect to each
Distribution Date, the weighted average of the REMIC I Remittance Rates for the
REMIC I Regular Interests, weighted on the basis of the Uncertificated Principal
Balances of the REMIC I Regular Interest related to each Mortgage Loan at the
beginning of the related Collection Period (disregarding any REMIC I Regular
Interest with respect to which a Principal Prepayment in full was received
during the Collection Period on the Mortgage Loan to which such REMIC I Regular
Interest relates).
"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, 0.50% per annum.
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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 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, Condemnation
Proceeds, Insurance Proceeds, Liquidation 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, 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.
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Section 1.3. 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 United States
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 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, 3, 6, 7 and 9 of each Mortgage Loan Purchase Agreement and (iii) all other
assets included or to be included in REMIC I (as described in Section 12.1(a)
hereof and the definition of 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),
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(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 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 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).
Notwithstanding the foregoing, the failure to deliver the originals or
copies of any of the documents or instruments referred to in clauses (ii), (iv),
(viii), (xi)(A) and (xii) of the definition of "Mortgage File" by the date 120
days after the Closing Date shall constitute a Material Defect in respect of the
related Mortgage Loan under Section 2.3 hereof.
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)(B) 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) record or file, 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), (vii), (x)(B) 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, assignment of
Assignment of Leases, or assignment of
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security agreement the Trustee shall request the Master Servicer to obtain
therefrom for the Trustee 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 Master Servicer promptly to prepare and file or record
or cause to be prepared and filed or recorded, a substitute therefor or cure
such defect, as the case may be, at the expense of the related Seller.
(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 and the Master Servicer
on or before the Closing Date a copy of a fully executed counterpart of each
Mortgage Loan Purchase 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 other REMIC
I assets, (iii) the REMIC II assets and (iv) the REMIC III assets, 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, 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 certified in the schedule of
exceptions to Mortgage File delivery attached thereto, that (W) all documents
specified in clauses (i), (ii), (iii), (ix), (xii) (to the extent it relates to
the foregoing) and (xiii) 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
Mortgagor set forth in the Mortgage Loan Schedule respecting such Mortgage Loan
accurately reflects
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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), respectively, 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 a Material 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, as the case may be,
that may give rise to a repurchase obligation on the part of the related Seller
(a "Breach"), such party shall give prompt written notice to the other parties
hereto. Promptly upon becoming aware of any such Material Defect or Breach, the
Trustee shall request that the related Seller within the time period provided
for in the related Mortgage Loan Purchase Agreement cure such Material 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, all in
accordance with the related Mortgage Loan Purchase Agreement; provided, however,
that, in lieu of effecting any such repurchase, a Seller will be permitted to
deliver a Qualifying Substitute Mortgage Loan and to pay a cash amount equal to
the applicable Substitution Shortfall Amount, subject to the terms and
conditions of the related Mortgage Loan Purchase Agreement and this Agreement.
A document in the Mortgage File shall be deemed to have a "Material Defect"
if (a) any document required to be included in the Mortgage File is not in the
Trustee's possession within the time required to be delivered, (b) such document
has been mutilated, damaged, defaced, torn or otherwise physically altered in
any material respect at the time of its delivery to the Trustee, (c) the
information set forth in the Mortgage Loan Schedule respecting such Mortgage
Loan differs from the information contained in the documents in the Mortgage
File in a material and adverse manner, or (d) a Mortgage Note has not been
endorsed or a Mortgage has not been assigned, or an assignment of Mortgage has
not been delivered as provided in Section 2.1 hereof.
As to any Qualifying Substitute Mortgage Loan, the Trustee shall direct the
related Seller to deliver to the Trustee for such Qualifying Substitute Mortgage
Loan (with a copy to the Master Servicer), the related Mortgage File with the
related Mortgage Note endorsed as required by
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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 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, to deposit cash equal to such amount into the
Collection Account concurrently with the delivery of the Mortgage File for the
Qualifying Substitute Mortgage Loan, 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.
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; 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 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, upon delivery
to each of them of a receipt executed by such Seller, 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 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) The Mortgage Loan Purchase Agreements provide the sole remedies
available to the Certificateholders, or the Trustee on behalf of the
Certificateholders, respecting any Material 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
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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;
(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 Closing Date;
(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 that
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
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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-16 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 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 Class X, Class B, Class C, Class D and Class E Certificates will be
issued in minimum denominations of $50,000 (or, in the case of the Class A
Certificates, will be issued in minimum denominations of $5,000) initial
Certificate Principal Balance or Certificate Notional Amount, as applicable, and
in integral multiples of $1 in excess thereof and the Class F, Class G, Class H,
Class J, Class K and Class L Certificates will be issued in minimum
denominations of $100,000 initial Certificate Principal Balance, 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 certification 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
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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
(the "Certificate 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.
Section 3.3. Transfer and Exchange of Certificates.
(a) A Certificate may be transferred by the Holder thereof 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, and subject to the restrictions set forth in the other
subsections of this Section 3.3, 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, and
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 that the Certificateholder
making the exchange is entitled to receive.
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(c) All Definitive Certificates that are Privately Offered Certificates
shall initially be Legended Definitive Certificates. By acceptance of a Legended
Definitive Certificate, whether upon original issuance or subsequent transfer,
each Holder of such a Certificate acknowledges the restrictions on the transfer
of such Certificate set forth in the Securities Legend and agrees that it will
transfer such a Certificate only as provided herein.
The Securities Legend shall appear on the face of the Legended Definitive
Certificates as follows:
THE CERTIFICATES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED OR QUALIFIED
UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"), OR THE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES AND MAY NOT
BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT (A)(1) TO A BUYER
THAT THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER
WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT PURCHASING FOR ITS
OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (2) PURSUANT TO AN
EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144
THEREUNDER (IF AVAILABLE), OR (3) TO A BUYER WHOM THE SELLER REASONABLY
BELIEVES IS AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF
RULE 501(a)(1), (2), (3) or (7) OF REGULATION D OF THE SECURITIES ACT AND
(B) IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF THE STATES OF THE
UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION.
A transferee shall only be able to take delivery of an Unlegended
Definitive Certificate that is a Privately Offered Certificate if and after the
Depositor submits to the Trustee an Opinion of Counsel of the Depositor stating
that the Securities Legend is not required on such Definitive Certificate by
applicable law. Upon the Depositor submitting such Opinion of Counsel to the
Trustee, the Holder of such Certificate may submit such Certificate to the
Trustee to exchange such Certificate for an Unlegended Definitive Certificate
and the Trustee shall satisfy such request notwithstanding anything else herein
to the contrary, and delivery permitted herein of a Legended Definitive
Certificate may be made in the form of an Unlegended Definitive Certificate.
Except as described below in Sections 3.3(d), 3.3(e) and 3.3(f), no
restrictions to transfer shall apply to the transfer or registration of transfer
of an Unlegended Definitive Certificate to a transferee that takes delivery in
the form of an Unlegended Definitive Certificate.
(d) No transfer of a Legended Definitive Certificate shall be made unless
the transfer is (v) to the Depositor, (w) to a QIB who has provided the Trustee
with a Purchaser's Letter in the form of Exhibit D hereto, (x) being made
pursuant to an exemption from registration under the Securities Act provided by
Rule 144 thereunder (if available), or (y) to an Institutional Accredited
Investor who has provided the Trustee with a Purchaser's Letter in the form of
Exhibit D hereto and such other certifications, opinions of counsel or other
information (at the transferor's expense) as it may reasonably require to
confirm that the proposed transfer is being made pursuant to an exemption from,
or in a transaction not subject to, the registration requirements of the
Securities Act, and in each
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case in accordance with any applicable securities laws of any state of the
United States or any other applicable jurisdiction.
(e) No transferee of a Senior Certificate that is a Definitive Certificate
shall be made unless the prospective transferee of a Certificateholder desiring
to transfer its Certificate provides the Trustee with a certification as set
forth in paragraph 6 of Exhibit D or an Opinion of Counsel, or both at the
request of the Trustee, which establishes to the reasonable satisfaction of the
Trustee that no employee benefit plan or other plan that is subject to ERISA or
Section 4975 of the Code (each, a "Plan") as to which either Underwriter, the
Depositor, the Master Servicer, the Special Servicer, the Fiscal Agent, the
Operating Adviser, or the Trustee is a party in interest or disqualified person,
and no qualified institutional buyer acting on behalf of or with "plan assets"
of, any such Plan, may acquire such Certificates unless pursuant to a statutory
exemption or any of the administrative exemptions issued by the U.S. Department
of Labor, such that the acquisition and holding of Senior Certificates by, on
behalf of or with "plan assets" of such Plan would not constitute or result in a
non-exempt prohibited transaction under ERISA or Section 4975 of the Code by
reason of the application of one or more of the statutory or administrative
exemptions from the prohibited transaction rules.
No transfer of a Subordinate or Residual Certificate shall be made unless
the prospective transferee of a Certificateholder desiring to transfer its
Certificate provides the Trustee with a certification as set forth in paragraph
7 of Exhibit D, or an Opinion of Counsel, or both at the request of the Trustee,
which establishes to the reasonable satisfaction of the Trustee that either (i)
such prospective transferee is not a Plan and is not using "plan assets" to
acquire such Certificate, or (ii) with respect to any proposed transfer of a
Subordinate Certificate, such transferee is an insurance company investing
solely assets of its general account and its purchase and holding of such
Certificate will not result in a non-exempt prohibited transaction under ERISA
or Section 4975 of the Code.
(f) (i) No Residual Certificate may be held or beneficially owned by a
Disqualified Organization. The Residual Certificates shall not be held or
beneficially owned by a non-United States Person. Prior to the registration of
any transfer, sale, pledge or other disposition of a Residual Certificate, the
proposed transferee shall provide to the Trustee a Transfer Affidavit and
Agreement in substantially the form set forth in Exhibit F, to the effect that
such transferee (1) agrees to be bound by the terms of this Agreement and any
restrictions set forth on the face of such Residual Certificate, as the case may
be, and (2) is not a Disqualified Organization or a non-United States Person and
will not hold such Residual Certificate on behalf of a Disqualified Organization
or non-United States Person, and will promptly notify the Trustee of any change
or impending change in its status as such. The transferor of the Residual
Certificate shall also provide the Trustee with a Transferor Certificate
substantially in the form of Exhibit E.
(ii) In addition, any transfer, sale, pledge or other disposition of
any such Certificate to a Pass-Through Entity shall not be registered
unless the proposed transferee shall have agreed in writing, in such form
as the Trustee may require, to provide to the Trustee such information as
the Trustee may reasonably require concerning any record interest holder or
principal of such Pass-Through Entity who is or was a Disqualified
Organization. Any Holder of a Residual Certificate, by its acceptance
thereof, shall be deemed for all purposes to have consented to the
provisions of this Section 3.3(f).
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(iii) The restrictions described in this Section 3.3(f) shall not
apply to a transfer of any such Certificate if the Trustee has received an
Opinion of Counsel to the effect that the restrictions described in this
Section 3.3(f) are not necessary to avoid the imposition of tax on a REMIC
or the disqualification of any REMIC as a REMIC under the Code.
(iv) (A) If any Disqualified Organization shall become a Holder of a
Residual Certificate, then the last-preceding non-Disqualified Organization
shall be restored, to the extent permitted by law, to all rights and
obligations as Holder thereof retroactive to the date of registration of
such transfer of such Residual Certificate. If a non-United States Person
shall become a holder of a Residual Certificate, then the last-preceding
United States Person shall be restored, to the extent permitted by law, to
all rights and obligations as Holder thereof retroactive to the date of
registration of such transfer of such Residual Certificate. If a transfer
of a Residual Certificate is disregarded pursuant to the provisions of
Treasury Regulations Section 1.860E-1 or Section 1.860G-3, then the
last-preceding Permitted Transferee shall be restored, to the extent
permitted by law, to all rights and obligations as Holder thereof
retroactive to the date of registration of such transfer of such Residual
Certificate. The Trustee shall be under no liability to any Person for any
registration of transfer of a Residual Certificate that is in fact not
permitted by this Section 3.3(f) 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(f) and to
the extent that the retroactive restoration of the rights of the Holder of
such Residual Certificate as described in clause (iv)(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, to sell such Residual Certificate to a purchaser selected by
the Trustee on such terms as the Trustee may choose. Such purported
transferee shall promptly endorse and deliver each 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 purported transferee. The terms and
conditions of any sale under this clause (iv)(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.
(v) Trustee shall make available 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 a Disqualified Organization,
including the information regarding "excess inclusions" of such Residual
Certificates required to be provided to the Internal Revenue Service and
certain Persons as described in Treasury Regulations Sections
1.860D-1(b)(5) and 1.860E-2(a)(5), 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
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holders at any time any Person who is a Disqualified Organization.
Reasonable compensation for providing such information may be required by
the Trustee from such Person.
(g) Each investor purchasing Privately Offered Certificates from either
Underwriter will be deemed to have represented and agreed as follows (terms used
herein that are defined in Rule 144A or in Regulation D under the Securities Act
("Regulation D") are used herein as defined therein):
(i) The investor understands that the Certificates have not been
registered under the Securities Act, and that if in the future it decides
to offer, resell, pledge or otherwise transfer such Certificates within two
years after the later of the original issuance of such Certificates or the
last date on which such Certificates are held by an affiliate of the
Depositor, it will do so only (i) to the Depositor, (ii) to a person that
the seller reasonably believes is a QIB in a transaction meeting the
requirements of Rule 144A, (iii) pursuant to an exemption from registration
under the Securities Act provided by Rule 144 thereunder (if available), or
(iv) in certificated form to an Institutional Accredited Investor that
delivers to the Trustee a letter in the form of Exhibit D hereto and such
certifications, legal opinions and other information as it may reasonably
require to confirm that the proposed transfer is being made pursuant to an
exemption from, or in a transaction not subject to, the registration
requirements of the Securities Act, and in each case in accordance with any
applicable securities laws of any state of the United States or any other
applicable jurisdiction.
(ii) The investor understands that the Certificates, except for the
Residual Certificates, will be issued only in the form of Book-Entry
Certificates, which will be held by the Custodian. Purchasers of such
Certificates will acquire beneficial interests in the Book-Entry
Certificates, which interests will be held directly or indirectly through
Participants.
(iii) The investor understands that Certificates will bear a
Securities Legend unless the Depositor determines otherwise consistent with
applicable law.
The Senior Certificates will also bear the following additional legend:
NOTWITHSTANDING THE ABOVE, IF THE TRANSFEREE OF THIS CERTIFICATE IS AN EMPLOYEE
BENEFIT OR OTHER PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED, OR SECTION 4975 OF
THE INTERNAL REVENUE CODE OF 1986, AS AMENDED, OR ANY PERSON ACTING ON BEHALF OF
SUCH PLAN OR IS USING THE ASSETS OF ANY SUCH PLAN TO ACQUIRE OR HOLD THIS
CERTIFICATE, SUCH PLAN OR SUCH PERSON MUST BE AN ACCREDITED INVESTOR.
The Subordinate Certificates will also bear the following legend:
NOTWITHSTANDING THE ABOVE, THIS CERTIFICATE MAY NOT BE SOLD, PLEDGED OR
OTHERWISE TRANSFERRED TO ANY PERSON THAT IS AN
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EMPLOYEE BENEFIT OR OTHER PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY
PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED
("ERISA"), OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE
"CODE"), OR ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS OF
SUCH PLAN TO ACQUIRE THIS CERTIFICATE, EXCEPT FOR AN INSURANCE COMPANY INVESTING
SOLELY ASSETS OF ITS GENERAL ACCOUNT, WHICH SHALL BE DEEMED TO HAVE REPRESENTED
AND WARRANTED THAT THE PURCHASE AND OWNERSHIP OF THE CERTIFICATE WILL NOT RESULT
IN A NON-EXEMPT PROHIBITED TRANSACTION UNDER ERISA OR SECTION 4975 OF THE CODE.
The Residual Certificates, will also bear the following additional legend:
THIS CERTIFICATE MAY NOT BE SOLD, PLEDGED OR OTHERWISE TRANSFERRED TO
"DISQUALIFIED ORGANIZATIONS" WITHIN THE MEANING OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED.
(iv) The investor is either (i) a QIB purchasing for its own account
or for the account of another QIB and it and such other Person are aware
that the sale to it is being made in reliance on Rule 144A or (ii) an
Institutional Accredited Investor and is purchasing the Certificates for
its own account or for an account with respect to which it exercises sole
investment discretion.
(v) If the investor is a QIB, the investor understands that the
Certificates offered in reliance on Rule 144A will be represented by the
Book-Entry Certificates. Before any interest in the Book-Entry Certificates
may be offered, sold, pledged or otherwise transferred to an Institutional
Accredited Investor, the transferee will be required to provide the Trustee
with a Purchaser's Letter in the form attached hereto as Exhibit D as to
compliance with the transfer restrictions referred to above.
(vi) The investor will deliver to each Institutional Accredited
Investor to whom it transfers Certificates notice of any restrictions on
transfer of such Certificates.
(vii) If the investor is acquiring Senior Certificates, it understands
that, in accordance with the prohibited transaction rules of ERISA and
Section 4975 of the Code and the terms of the Exemptions (as such term is
defined and described under the heading "ERISA CONSIDERATIONS" in the
Prospectus Supplement), no Plan as to which either Underwriter, the
Depositor, the Master Servicer, the Special Servicer, the Fiscal Agent, the
Operating Adviser or the Trustee is a party in interest or disqualified
person, and no qualified institutional buyer acting on behalf of or with
"plan assets" of any such Plan, may acquire such Certificates unless
pursuant to a statutory exemption or any of the administrative exemptions
issued by the U.S. Department of Labor, such that the acquisition and
holding of Senior Certificates by, on behalf of or with "plan assets" of
such Plan would not constitute or result in a non-exempt prohibited
transaction under ERISA or Section 4975 of the Code by reason of the
application of
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one or more of the statutory or administrative exemptions from the
prohibited transaction rules described herein.
(viii) If the investor is acquiring Subordinate or Residual
Certificates, (i) it is not a Plan and is not using "plan assets" of any
Plan to acquire such Certificates and (ii) if it is an insurance company,
it is investing solely assets of its general account, and it shall be
deemed to have represented and warranted that the purchase and holding of
such Certificates will not constitute or result in a non-exempt prohibited
transaction under ERISA or Section 4975 of the Code.
(ix) If the investor is acquiring any Privately Offered Certificate as
a fiduciary or agent for one or more investor accounts, it represents that
it has sole investment discretion with respect to such account and that it
has full power to make the acknowledgments, representations and agreements
contained herein on behalf of each such account.
(x) The investor acknowledges that the Depositor, the Underwriters,
the Trustee, the Fiscal Agent and others will rely on the truth and
accuracy of the foregoing acknowledgments, representations and agreements,
and agrees that if any of the foregoing representations and agreements
deemed to have been made by it by its purchase are no longer accurate, it
shall promptly notify the Depositor and the Underwriters.
(xi) Each original purchaser of the Certificates will be required to
sign a Purchaser's Letter in the form attached as Exhibit D hereto.
(xii) 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 this Section 3.3.
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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.
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 Owner'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;
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(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 in respect of such Classes 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 (and, in the
case of the Class X Certificates, notional) amount of Certificates, such
direction or consent may be given in respect of such Classes by the Clearing
Agency at the direction of Certificate Owners owning Certificates evidencing the
requisite percentage of principal (and, in the case of the Class X Certificates,
notional) 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 a 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
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, (ii) the Depositor, at its option, elects to
terminate the book-entry system through the Clearing Agency or (iii) an Event of
Default shall have occurred and is continuing and Holders of Book-Entry
Certificates entitled to at least 51% of the Voting Rights thereof advise the
Depository and the Trustee that the continuation of the book-entry system
through the Depository (or a successor thereto) is no longer in the best
interest of Certificateholders. 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
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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, subject to Section 4.4, 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 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 P&I Advances, the Master Servicer shall utilize such Late Collections
to make such P&I Advances pursuant to clause (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 advanced
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 4.01(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.
(404) 654-2478 (or such alternative number provided by the Master Servicer to
the Trustee in writing) and by telephone at telephone no. (404) 654-2000 (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 any related Workout Fee, that were due or
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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 has occurred (and for so long as it exists) with respect to any
Required Appraisal Loan, then, in the event of subsequent delinquencies thereon,
the amount of the P&I Advance in respect of such Required Appraisal Loan for the
related Distribution Date shall be reduced to an amount equal to 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. In addition, and
without duplication, the Master Servicer shall make only one P&I Advance in
respect of each Mortgage Loan for the benefit of the most subordinate Class of
Certificates then outstanding unless the related defaulted Monthly Payment is
cured prior to the following Due Date on any Mortgage Loan. The amount to be
advanced by the Master Servicer, Trustee or Fiscal Agent in respect of any
Mortgage Loan on any Distribution Date will be reduced by the greater of the
reduction in respect of any Appraisal Reduction and the reduction described in
the preceding sentence.
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 Special Servicer,
the Trustee or the Fiscal Agent determines, as applicable, in accordance with
Section 4.4 below, that any such Servicing 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 the advance was made to, but not including, the date of
reimbursement. Such reimbursement and any accompanying payment of interest shall
be made within ten (10) days of the request therefor by wire transfer of
immediately available funds to an account designated by the Special Servicer.
Upon the Master Servicer's reimbursement to the Special Servicer of any
Servicing Advance and payment to the Special Servicer of interest thereon, all
in accordance with this Section 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 Servicing Advance, and
accordingly, the Master Servicer shall be entitled to reimbursement for such
Servicing Advance, together with interest thereon at the Advance Rate, 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,
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the Special Servicer may, in its sole discretion, request that the Master
Servicer make such Servicing 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 Servicing 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 a Servicing 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 requesting 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 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 by 12:00 p.m., New York City time, 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
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Servicer determines is a Nonrecoverable Advance), and a Responsible Officer of
the Trustee receives actual 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 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, payable: first, out of Penalty Charges received on
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the Mortgage Loan (including, without limitation, an REO Mortgage Loan as to
which such P&I Advance was made) or, if such amounts are insufficient, out of
general collections on the Mortgage Loans and REO Properties in the Collection
Account.
Section 4.6. 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 4.6 have been completed and such action is permitted
by and complies with the terms of this Section 4.6.
Section 4.7. 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 4.7 shall survive the resignation or removal of
the Fiscal Agent and the termination of this Agreement.
Section 4.8. 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 Master Servicer
and
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the Trustee if a claim is made by a third party with respect to this Section 4.8
entitling the Fiscal Agent, its directors, officers, employees or agents to
indemnification hereunder, whereupon the Master Servicer 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 Master Servicer shall not affect any rights the Fiscal Agent, its directors,
officers, employees or agents may have to indemnification under this Section
4.8, unless the Master Servicer'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.
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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 Agreement, entitled "AMRESCO Services, L.P., as Master
Servicer for LaSalle National Bank, as Trustee for the Holders of Morgan Stanley
Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series 1998-HF1,
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 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: 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
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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;
(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 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
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or disposed of prior to its maturity unless payable on demand. All such Eligible
Investments shall be made in the name of "AMRESCO Services L.P., in trust for
LaSalle National Bank, as Trustee for the Holders of the Morgan Stanley Capital
I Inc., Commercial Mortgage Pass-Through Certificates, Series 1998-HF1." None of
the Depositor, the Mortgagors, the Trustee or the Fiscal Agent shall be liable
for any loss incurred on such Eligible Investments.
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.
(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.
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(b) The Master Servicer may, from time to time, also make withdrawals from
the Collection Account for any of the following purposes:
(i) Servicing Fees: to pay to itself unpaid Master Servicing Fees 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) 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 Servicing
Advances were made with respect to any Mortgage Loan or REO Property;
(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 Loans, including without limitation any 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 pay itself, the
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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 any
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 8.19(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 4.8, 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 Deleted
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 (including any Holder of a Class
R-I, Class R-II or Class R-III Certificate) has failed to make the required
payment;
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(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 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 1998-HF1,
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:
(i) to withdraw amounts deposited in the Distribution Account in error
and pay such amounts to the Persons entitled thereto;
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(ii) to pay itself unpaid Trustee Fees and any other amounts owed to
it pursuant to Section 7.12 hereof;
(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 sent 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, the Underwriters, the Depositor, Heller 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 G-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 and will be presented in a tabular
format substantially similar to the 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 that 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 a Certificateholder, together with such other customary information as the
Trustee deems may be necessary or desirable for such Certificateholders 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 (or a similar
system), the reports
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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 Underwriters, the Master Servicer,
the Rating Agencies and the Special Servicer account numbers on the Trustee's
ASAP System (or a similar 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
Underwriters, the Master Servicer, the Rating Agencies and the Special Servicer.
The Trustee also maintains a site on the World Wide Web at WWW.LNBABS.COM at
which certain of the above information will be available.
(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
Underwriters, 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 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 Operating
Statement Analyses, 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 Officer's 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 Supplement 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 Underwriters 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.
(f) The Trustee shall afford the Underwriters, 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
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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 Underwriters 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.
(h) On each Distribution Date, except as described below, the Trustee shall
deliver or shall cause to be delivered by first class mail to each
Certificateholder, each prospective investor in a Certificate (upon request),
Certificate Owner (if known), the Depositor, each Underwriter and each Rating
Agency a copy of the Comparative Financial Status Report, the Delinquent Loan
Status Report, the Historical Loss Estimate Report, the Historical Loan
Modification Report, the REO Status Report and a Watch List (indicating those
Mortgage Loans that the Master Servicer has determined are in jeopardy of
becoming Specially Serviced Mortgage Loans) provided by the Master Servicer to
the Trustee pursuant to Section 8.14(c) and 8.14(e) on the Master Servicer
Remittance Date. The information that pertains to Specially Serviced Mortgage
Loans and REO Properties reflected in such reports shall be based solely upon
the reports delivered by the Special Servicer to the Master Servicer at least
two Business Days prior to the related Master Servicer Remittance Date. Absent
manifest error, (i) none of the Master Servicer, the Special Servicer or the
Trustee shall be responsible for the accuracy or completeness of any information
supplied to it by a Mortgagor or third party that is included in any reports,
statements, materials or information prepared or provided by the Master
Servicer, the Special Servicer or the Trustee, as applicable, (ii) the Trustee
shall not be responsible for the accuracy or completeness of any information
supplied to it by the Master Servicer or Special Servicer that is included in
any reports, statements, materials or information prepared or provided by the
Master Servicer or Special Servicer, as applicable, and (iii) the Trustee shall
be entitled to
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conclusively rely upon the Master Servicer's reports and the Special Servicer's
reports without any duty or obligation to recompute, verify or re-evaluate any
of the amounts or other information stated therein.
The information contained in the reports in the preceding paragraph of this
Section 5.4(h) shall be made available to the Trustee and the Rating Agencies
electronically by the Master Servicer in the form of the standard CSSA loan file
and CSSA property file, and the Trustee will in lieu of mailing such reports as
described in such preceding paragraph make such reports available electronically
in such form to Certificateholders using the media mutually agreed upon by the
Trustee, each Underwriter and the Depositor; provided, however, that the Trustee
will continue to provide Certificateholders with a written copy of such reports
upon request in the manner described in such preceding paragraph.
The Trustee shall deliver a copy of each Operating Statement Analysis
report and NOI Adjustment Worksheet that it receives from the Master Servicer
and Special Servicer to the Depositor, each Underwriter and each Rating Agency
promptly after its receipt thereof. Upon request, the Trustee shall make such
reports available to the Certificateholders and the Special Servicer. Upon
request, the Trustee shall also make available to any potential investor in the
Certificates any NOI Adjustment Worksheet for a Mortgaged Property or REO
Property in the possession of the Trustee.
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 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 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
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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
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.
(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 (excluding any amounts attributable to Prepayment
Premiums) as is attributable to each Mortgage Loan for such date for the
following purposes and in the following order of priority:
(i) to pay interest to REMIC II in respect of each REMIC I Regular
Interest, up to an amount equal to, and pro rata in accordance with, all
Uncertificated
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Distributable Interest (excluding amounts attributable to Prepayment
Premiums) for each such REMIC I Regular Interest for such Distribution
Date;
(ii) to pay principal to REMIC II in respect of each REMIC I Regular
Interest, up to an amount equal to, and pro rata in accordance with, 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 Qualifying
Substitute Mortgage Loan) that will be outstanding immediately following
such Distribution Date;
(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; and
(iv) to the Holders of the Class R-I Certificates that portion, if
any, of the Available Distribution Amount (excluding amounts attributable
to Prepayment Premiums) for such date that has not otherwise been deemed
paid to REMIC II in respect of the REMIC I Regular Interests pursuant to
this Section 6.2(a).
(b) 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.
(c) All amounts (other than additional interest in the form of Prepayment
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) It is the intention of the parties hereto that the distributions set
forth below result in the Certificate Principal Balances of each Class of REMIC
II Regular Interests and its corresponding Class of Certificates being equal. On
each Distribution Date, the Trustee shall be deemed to apply the REMIC II
Distribution Amount for such date for the following purposes and in the
following order of priority:
(i) to distributions of interest to REMIC III in respect of REMIC II
Regular Interest A1 and REMIC II Regular Interest A2, up to an amount equal
to (and prorata in accordance with) all Uncertificated Distributable
Interest on such REMIC II Regular Interests for such Distribution Date;
(ii) to distributions of principal in respect of first, REMIC II
Regular Interest A1, and second, REMIC II Regular Interest AZ, in each case
up to an amount equal to
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the lesser of (1) the then outstanding Uncertificated Principal Balance of
such Class and (2) the remaining portion, if any, of such REMIC II
Distribution Amount;
(iii) to reimburse REMIC III for any Realized Losses and Expense
Losses previously deemed allocated to REMIC II Regular Interest A1 and
REMIC II Regular Interest A2 (with interest), up to an amount equal to (and
pro rata in accordance with) the Loss Reimbursement Amount in respect of
such REMIC II Regular Interest for such Distribution Date;
(iv) to distributions of interest to REMIC III in respect of REMIC II
Regular Interest B, up to an amount equal to all Uncertificated
Distributable Interest on such REMIC II Regular Interest for such
Distribution Date;
(v) to distributions of principal in respect of REMIC II Regular
Interest B, until the Uncertificated Principal Balance thereof is reduced
to zero;
(vi) 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;
(vii) to distributions of interest to REMIC III in respect of REMIC II
Regular Interest C, up to an amount equal to all Uncertificated
Distributable Interest on such REMIC II Regular Interest for such
Distribution Date;
(viii) to distributions of principal in respect of REMIC II Regular
Interest C, until the Uncertificated Principal Balance thereof is reduced
to zero;
(ix) 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;
(x) to distributions of interest to REMIC III in respect of REMIC II
Regular Interest D, up to an amount equal to all Uncertificated
Distributable Interest on such REMIC II Regular Interest for such
Distribution Date;
(xi) to distributions of principal in respect of REMIC II Regular
Interest D, until the Uncertificated Principal Balance thereof is reduced
to zero;
(xii) 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;
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(xiii) to distributions of interest to REMIC III in respect of REMIC
II Regular Interest E, up to an amount equal to all Uncertificated
Distributable Interest on such REMIC II Regular Interest for such
Distribution Date;
(xiv) to distributions of principal in respect of REMIC II Regular
Interest E, until the Uncertificated Principal Balance thereof is reduced
to zero;
(xv) 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;
(xvi) to distributions of interest to REMIC III in respect of REMIC II
Regular Interest F, up to an amount equal to all Uncertificated
Distributable Interest on such REMIC II Regular Interest for such
Distribution Date;
(xvii) to distributions of principal in respect of REMIC II Regular
Interest F, until the Uncertificated Principal Balance thereof is reduced
to zero;
(xviii) 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;
(xix) to distributions of interest to REMIC III in respect of REMIC II
Regular Interest G, up to an amount equal to all Uncertificated
Distributable Interest on such REMIC II Regular Interest for such
Distribution Date;
(xx) to distributions of principal in respect of REMIC II Regular
Interest G, until the Uncertificated Principal Balance thereof is reduced
to zero;
(xxi) 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;
(xxii) to distributions of interest to REMIC III in respect of REMIC
II Regular Interest H, up to an amount equal to all Uncertificated
Distributable Interest on such REMIC II Regular Interest for such
Distribution Date;
(xxiii) to distributions of principal in respect of REMIC II Regular
Interest H, until the Uncertificated Principal Balance thereof is reduced
to zero;
(xxiv) 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;
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(xxv) to distributions of interest to REMIC III in respect of REMIC II
Regular Interest J, up to an amount equal to all Uncertificated
Distributable Interest on such REMIC II Regular Interest for such
Distribution Date;
(xxvi) to distributions of principal in respect of REMIC II Regular
Interest J, until the Uncertificated Principal Balance thereof is reduced
to zero;
(xxvii) 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;
(xxviii) to distributions of interest to REMIC III in respect of REMIC
II Regular Interest K, up to an amount equal to all Uncertificated
Distributable Interest on such REMIC II Regular Interest for such
Distribution Date;
(xxix) to distributions of principal in respect of REMIC II Regular
Interest K, until the Uncertificated Principal Balance thereof is reduced
to zero; and
(xxx) to reimburse REMIC III for any Realized Losses and Expense
Losses previously deemed allocated to REMIC II Regular Interest K (with
interest), up to an amount equal to the Loss Reimbursement Amount in
respect of such REMIC II Regular Interest for such Distribution Date.
(xxxi) to distributions of interest to REMIC III in respect of REMIC
II Regular Interest L, up to an amount equal to all Uncertificated
Distributable Interest on such REMIC II Regular Interest for such
Distribution Date;
(xxxii) to distributions of principal in respect of REMIC II Regular
Interest L, until the Uncertificated Principal Balance thereof is reduced
to zero; and
(xxxiii) to reimburse REMIC III for any Realized Losses and Expense
Losses previously deemed allocated to REMIC II Regular Interest L (with
interest), up to an amount equal to the Loss Reimbursement Amount in
respect of such REMIC II Regular Interest for such Distribution Date.
(b) 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 the REMIC II Regular Interests.
(c) 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.
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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 from the Principal Distribution Amount for such
Distribution Date, first to the Holders of the Class A1 Certificates and,
second to the Holders of the Class A2 Certificates in each case, up to an
amount equal to the lesser of (1) the then-outstanding Class Principal
Balance of such Class and (2) the remaining portion, if any, of such
Principal Distribution Amount;
(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 described in Article X hereof, 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
Balance of such Certificates for such Distribution Date and without regard to
the Principal Distribution Amounts for such date;
(b) 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 Principal Distribution Amount for such Distribution Date;
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(iii) to reimburse the Holders of the Class B Certificates for
Realized 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 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 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 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 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 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 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 Class of Certificates for such
Distribution Date;
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(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 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;
(xxv) to pay interest to the Holders of the Class K Certificates, up
to an amount equal to all Distributable Certificate Interest in respect of
such Class of Certificate for such Distribution Date;
(xxvi) if the Class Principal Balances of the Class A, Class B, Class
C, Class D, Class E, Class F, Class G, Class H and Class J Certificates
have been reduced to zero, to pay principal to the Holders of the Class K
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 Principal Distribution Amount for such Distribution Date;
(xxvii) to reimburse the Holders of the Class K 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;
(xxviii) to pay interest to the Holders of the Class L Certificates,
up to an amount equal to all Distributable Certificate Interest in respect
of such Class of Certificate for such Distribution Date;
(xxix) if the Class Principal Balances of the Class A, Class B, Class
C, Class D, Class E, Class F, Class G, Class H, Class J and Class K
Certificates have been reduced to zero, to pay principal to the Holders of
the Class L 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 Principal Distribution Amount for such Distribution Date;
(xxx) to reimburse the Holders of the Class L 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
(xxxi) 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.
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(c) 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 Mortgage Loans during or prior to the related Collection
Period and shall distribute such amounts, in each case, subject to available
funds, as additional interest, to the Holders of the respective Classes of
Principal Balance Certificates (other than the Class F, G, H, J, K and L
Certificates) then entitled to distributions of principal from the Principal
Distribution Amount for such Distribution Date an aggregate amount (allocable
among such Classes, if more than one, as described below) equal to the lesser of
(i) such Prepayment Premium and (ii) such Prepayment Premium multiplied by a
fraction, the numerator of which is equal to the excess, if any, of the
Pass-Through Rate applicable to the most senior of such Classes of Certificates
then outstanding (or, in the case of the Class A Certificates, the one with the
earlier 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 Mortgage Loan, over the relevant Discount Rate. If there is
more than one Class of Principal Balance Certificates entitled to distributions
of principal from the Principal Distribution Amount 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 amounts
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 X 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 (or the Hyper-Amortization Date, if applicable) 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.
(d) 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
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Trustee shall also determine the amount, if any, by which (i) the then-aggregate
Uncertificated Principal Balance of REMIC II Regular Interests A, B, C, D, E, F,
G, H, J, K and L 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 respective Uncertificated Principal
Balances of such REMIC II Regular Interests 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 II Regular Interest 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 L, Class K, 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 A1 and Class A2 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.
Section 6.6. Appraisal Reductions.
Following the occurrence of an Appraisal Event in respect of any Mortgage
Loan, the Special Servicer shall as soon as reasonably practicable (but in any
event, within 60 days) 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 updated at least annually to the extent
such Mortgage Loan remains a Required Appraisal Loan. The cost of any such
Appraisal if not an internal valuation 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. Te
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
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from time to time by the Special Servicer. Any Appraisal or internal valuation
obtained by the Special Servicer pursuant to this section shall be delivered by
the Special Servicer to the Master Servicer, and the Master Servicer shall
- -deliver such Appraisal or internal valuation to the Trustee within 15 days of
receipt by the Master Servicer of such Appraisal or internal valuation from the
Special Servicer and the Trustee shall deliver such Appraisal or internal
valuation to the Holders of the Privately Offered Certificates within 15 days of
receipt by the Trustee of such Appraisal or internal valuation from the Master
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 subject to such requirements
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 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.
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(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 the REMIC Pools 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 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:
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(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 Certificateholders
making such request;
(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
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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 and 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, its assets, any REMIC
Pool or transactions including, without limitation, (A) "prohibited transaction"
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 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
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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 S&P) and, in any event,
"BBB" by S&P; 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 S&P) and, in any event, "AA" by S&P 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 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
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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 Fiscal Agent Termination
Event has occurred, then the Depositor shall send a written notice 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 Fiscal Agent in
accordance with this Section. The
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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 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
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 Fiscal Agent
as provided in this Section, the successor Trustee or 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.
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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 provisions 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 relieved of liability for the
actions or omissions of any co-trustee or separate trustee appointed by it
(except that the Trustee shall have no liability for actions taken by such
co-trustee or separate trustee outside the authority granted by the Trustee to
such co-trustee or separate trustee pursuant to such appointment) and shall not
be liable for the actions of any co-trustee or separate trustee not appointed by
it.
(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
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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 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 and shall
be reimbursed 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.
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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, 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.
(a) 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, judgments 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
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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 Master Servicer'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 Master Servicer 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 Master Servicer,
which consent shall not be unreasonably withheld.
(b) The Trustee agrees to indemnify the Special Servicer and the Master
Servicer, 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 either 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
Trustee's duties hereunder or by reason of reckless disregard of the Trustee's
obligations and duties 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 Trustee is
replaced, the parties hereto agree that the amount of such claims, losses,
penalties, fines, forfeitures, 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 Trustee. Each of the Special Servicer
and the Master Servicer shall immediately 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 Special Servicer or the Master Servicer to
indemnification hereunder, whereupon the Trustee shall assume the defense of any
such claim (with counsel reasonably satisfactory to the Special Servicer and the
Master Servicer and pay all expenses in connection therewith, including counsel
fees, and promptly pay, discharge and satisfy any judgment or decree that 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 Special Servicer or the Master
Servicer may have to indemnification under this Agreement or otherwise, unless
the Trustee's defense of such claim is materially prejudiced thereby and the
Trustee 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.
The provisions of this Section 7.11 shall survive any termination of this
Agreement and the resignation or removal of the Trustee.
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Section 7.12. Fees and Expenses of Trustee and Fiscal Agent.
Monthly, the Trustee shall be entitled to receive 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
powers and duties hereunder of the Trustee. On or before the Master Servicer
Remittance Date in each month (commencing in April 1998), the Master Servicer
shall, pursuant to Section 5.2(a), remit to the Trustee for deposit in the
Distribution Account that portion of funds 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 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 Trustee and 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
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execution and delivery of this Agreement, nor the consummation of the
transactions contemplated in this Agreement, nor compliance with the
provisions of this Agreement, 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) to 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 bank 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 Agreement, will
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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) to 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.
Section 7.16. 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
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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 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 "AA", as applicable, by either Rating Agency.
Section 7.17. 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 either a successor Fiscal Agent shall be
appointed by the Trustee, with the consent of the Depositor, or the Trustee
shall take such other action as shall prevent the downgrading of the
then-current ratings of the certificates; 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 the appointment of a successor fiscal
agent or such other action. 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.
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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 sole 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, 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, prudence and diligence as is normal and usual in its
general mortgage servicing and 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 net present value basis; 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, the Depositor, either
Seller, or other servicer of the Mortgage Loans, (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, (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, (F) the ownership, servicing or management for others of any other
mortgage loans or mortgaged property; and (G) any obligation of the Master
Servicer or the Special Servicer, as the case may be (as a seller or an
Affiliate of a seller of the Mortgage Loans), to pay any indemnity with respect
to, or repurchase, any Mortgage Loan (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 all 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
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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, 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, REO
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 that 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
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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 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, in accordance with the Servicing
Standard, 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 any Lock-Box Agreement or
similar agreement is required by the terms of the related Mortgage, 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. 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.
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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 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 and unreimbursed Advance Interest 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 (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) The Master Servicer 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
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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 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. Within 6 months of the Closing Date, the Master Servicer
shall deliver a report to the Special Servicer and the Depositor setting forth
the status of each of the Reserve Accounts and the actions taken in respect of
the purposes for which such Reserve Accounts were established and any
recommendations in respect thereof.
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 shall maintain errors and
omissions insurance and fidelity bond coverage as required of the Master
Servicer or the Special Servicer 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); (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; (v) provides that the Trustee for the benefit of the
Certificateholders shall be a third party beneficiary under such Sub-Servicing
Agreement, but that (except to the extent the Trustee or its designee assumes
the obligations of the Master Servicer or the Special Servicer, as the case may
be, thereunder as contemplated by the immediately preceding clause (ii)) none of
the Trust Fund, the Trustee, any successor Master Servicer or Special Servicer
(unless and to the extent that the successor Master Servicer or the Special
Servicer is a party to such Sub-Servicing Agreement), as the case may be, or any
Certificateholder shall have any duties under
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such Sub-Servicing Agreement or any liabilities arising therefrom; (vi) permits
any purchaser of a Mortgage Loan pursuant to this Agreement to terminate such
Sub-Servicing Agreement with respect to such purchased Mortgage Loan at its
option and without penalty and (vii) does not permit the Sub-Servicer any direct
rights of indemnification that may be satisfied out of assets of the Trust Fund.
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.
(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.
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(f) Notwithstanding anything to the contrary contained herein, neither the
Master Servicer nor the Special Servicer shall have the right to delegate to any
Sub-Servicer any right granted to the Master Servicer or the Special Servicer,
as applicable, hereunder to modify or foreclose upon any Mortgage Loan.
Section 8.5. Maintenance of Insurance Policies; Errors and Omissions and
Fidelity Coverage.
(a) The Master Servicer 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 shall impose such insurance requirements as are
consistent with the Servicing Standard. If a Mortgagor fails to maintain such
insurance, the Master Servicer 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 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 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 of 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 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 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 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
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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 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 that 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 such
deductible clause exceeds the deductible under a policy complying with the
requirements of Section 8.5(a). 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 two highest ratings categories) by any Rating Agency
or (B) who are (as evidenced by the receipt of Rating Agency Confirmation)
otherwise acceptable to each Rating Agency.
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Section 8.6. Enforcement of Due-On-Sale Clauses; Assumption Agreements;
Subordinate Financing.
(a) If any Mortgage Loan contains a provision in the nature of a
"due-on-sale" clause, which by its terms:
(i) provides that such Mortgage Loan shall (or may at the mortgagee's
option) become due and payable upon the sale or other transfer of an
interest in the related Mortgaged Property; or
(ii) provides that such Mortgage Loan may not be assumed without the
consent of the 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
Special Servicer, on behalf of the Trustee as the mortgagee of record, shall
exercise (or, subject to Section 8.18(a), 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; provided, however, that if the
Mortgaged Property to be sold or transferred relates to a Mortgage Loan that
constitutes 5% or more of the Stated Principal Balance of all the Mortgage Loans
(taking into account for the purposes of such calculation, (a) in the case of
any such Mortgage Loan that is a Cross-Collateralized Mortgage Loan, any
Mortgage Loan with which it is cross-collateralized and (b) in the case of any
such Mortgage Loan with respect to which the related Mortgagor or its affiliate
is a Mortgagor with respect to one or more other Mortgage Loans, such other
Mortgage Loan or Mortgage Loans), then any such sale or transfer shall require
Rating Agency Confirmation. In the event that the 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 Special
Servicer, 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; provided, however, that if the Mortgaged
Property to be transferred pursuant to this sentence relates to a Mortgage Loan
that constitutes 3% or more of the Stated Principal Balance of all the Mortgage
Loans (taking into account for the purposes of such calculation, (a) in the case
of any such Mortgage Loan that is a Cross-Collateralized Mortgage Loan, any
Mortgage Loan with which it is cross-collateralized and (b) in the case of any
such Mortgage Loan with respect to which the related Mortgagor or its affiliate
is a Mortgagor with respect to one or more other Mortgage Loans, such other
Mortgage Loan or Mortgage Loans), then any such transfer and substitution shall
require Rating Agency Confirmation. In connection with any such transfer and
substitution, the Special Servicer 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 Special Servicer
shall promptly notify the Trustee and the Master Servicer of any such agreement
and forward the original thereof to the Trustee for inclusion in the related
Mortgage File (with a copy to the Master Servicer and the Rating Agencies).
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(b) If any Mortgage Loan contains a provision in the nature of a
"due-on-encumbrance" clause, which by its terms:
(i) provides that such Mortgage Loan shall (or may at the mortgagee's
option) become due and payable upon the creation of any 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
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; provided, however, that any such waiver shall require Rating Agency
Confirmation.
(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.
(e) In the event that a Mortgagor elects to obtain a release of the related
Mortgaged Property from the lien of the related Mortgage by pledging defeasance
collateral in accordance with the terms of the Mortgage Note, then the Master
Servicer shall, in accordance with the terms of such Mortgage Note, obtain
reasonable assurance that the Certificates will not be subject to a downgrade,
withdrawal or qualification by the Rating Agencies as a result of such
defeasance and that any related expenses will be paid for by the Mortgagor. In
addition, the Master Servicer shall require an Opinion of Counsel (which shall
be at the expense of the Mortgagor) to the effect that such defeasance will not
cause an Adverse REMIC Event.
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
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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 as a Servicing Advance toward the
restoration of such property if it shall determine in its reasonable discretion
(i) that such restoration will increase, on a net present value basis, the net
proceeds of liquidation of such Mortgaged Property to Certificateholders after
reimbursement to itself for such Advances (together with Advance Interest), and
(ii) that such Advances (together with Advance Interest) will be recoverable 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, among other things, the physical
condition of the Mortgaged Property, the state of the local economy, the Trust's
obligation to dispose of any REO Property within the period specified in Section
8.19, 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 Special Servicer 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 8.7 (with the exception of cash or cash equivalents pledged as
collateral for a Mortgage 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 or
any REMIC Pool 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.
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(c) Notwithstanding the foregoing provisions of this Section 8.7, neither
the Master Servicer nor the Special Servicer shall, on behalf of the Trustee,
complete 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 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
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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 and the Master Servicer.
(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 laws of 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 10 Business Days 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 that are required to be deposited in
the Collection Account pursuant to Section 5.1 have been or will be so
deposited. Within five 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 that are required to be deposited
into the Collection
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Account pursuant to Section 5.1 have been or will be so deposited, or that such
Mortgage Loan has become an REO Mortgage Loan, the Request for Release shall be
released by the Trustee to the Master Servicer or the Special Servicer, as
applicable.
(c) Within five 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 Trustee for the Benefit of
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 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.
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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 Stated 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 Mortgage 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) 50% of any modification fees and assumption fees and 100% of any
ancillary fees not otherwise addressed herein and Penalty Charges collected
on Mortgage Loans other than Specially Serviced Mortgage Loans and REO
Mortgage Loans, but only to the extent actually paid by the related
Mortgagor and to the extent that all amounts then due and payable with
respect to the related Mortgage Loan (including Advance Interest) have been
paid and, with respect to Penalty Charges only, are not needed to pay
Advance Interest with respect to any other Mortgage Loan;
(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 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
(iv) 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.
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(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 Stated 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 Mortgage 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 8.24, it shall retain the right to receive any and all Workout Fees
payable in respect of Mortgage Loans that became Corrected Mortgage Loans during
the period that it acted as Special Servicer and 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 any Person entitled to effect an optional termination of the Trust pursuant
to Section 10.01). 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.
The Special Servicer shall be entitled to additional special servicing
compensation ("Additional Special Servicing Compensation") in the form of 100%
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 and 50% of any modification fees and
assumption fees collected on Mortgage Loans other than Specially Serviced
Mortgage Loans and REO Mortgage Loans.
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(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 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 2:00
p.m. Eastern time on 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 on or
before the date that is three Business Days prior to the Distribution Date.
(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, 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 30 of each year, the Master Servicer at its expense shall cause
a firm of Accountants to furnish a statement to the Depositor, the Operating
Adviser and the Trustee to the effect that (i) it has obtained a letter of
representation 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
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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
Securities and Exchange Commission on the Depositor in connection with the
Securities and Exchange 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 Memorandum, 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. The
Master Servicer also maintains a site on the World Wide Web at WWW.AMRESCO.COM
at which property level information will be available.
(b) [reserved.]
(c) No later than 12:00 noon Central time on the Master Servicer Remittance
Date, the Master Servicer shall deliver or cause to be delivered to the Trustee
the following reports with respect to the Mortgage Loans (and, if applicable,
the related REO Properties), providing the required information as of the Due
Date: (i) a Comparative Financial Status Report, (ii) a Delinquent Loan Status
Report; (iii) an Historical Loss Estimate Report; (iv) an Historical Loan
Modification Report; (v) an REO Status Report; and (vi) CSSA Reports. Such
reports shall be presented in writing and on a computer readable medium
reasonably acceptable to the Trustee. The information that pertains to Specially
Serviced Mortgage Loans and REO Properties reflected in such reports shall be
based solely upon the reports delivered by the Special Servicer to the Master
Servicer pursuant to Section 8.29. In the absence of manifest error, the Master
Servicer shall be entitled to conclusively rely upon, without investigation or
inquiry, the information and reports delivered to it by the Special Servicer,
and the Trustee shall be entitled to conclusively rely upon the Master
Servicer's reports and the Special
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Servicer's reports without any duty or obligation to recompute, verify or
recalculate any of the amounts and other information stated therein. Any of such
reports may include any disclaimers the Master Servicer deems appropriate.
(d) The Master Servicer shall deliver or cause to be delivered to the
Trustee the following materials, in each case to the extent that such materials
or the information on which they are based have been received by the Master
Servicer:
(i) At least annually by June 30th, with respect to each Mortgage Loan
and REO Mortgage Loan, an Operating Statement Analysis for the related
Mortgaged Property or REO Property as of the end of the preceding calendar
year, together with copies of the operating statements and rent rolls (but
only to the extent the related Mortgagor is required by the Mortgage to
deliver, or otherwise agrees to provide such information and, with respect
to operating statements and rent rolls for Specially Serviced Mortgage
Loans and REO Properties, only to the extent delivered by the Special
Servicer) for the related Mortgaged Property or REO Property as of the end
of the preceding fiscal year. The Master Servicer shall use its reasonable
efforts to obtain such annual operating statements and rent rolls with
respect to each of the Mortgage Loans other than Specially Serviced
Mortgage Loans or REO Mortgage Loans, which efforts shall include a letter
sent to the related Mortgagor each quarter (followed up with telephone
calls) requesting such annual operating statements and rent rolls until
they are received to the extent such action is consistent with applicable
law and the terms of the Mortgage Loans.
(ii) Within thirty days after receipt by the Master Servicer (or
twenty days after receipt from the Special Servicer in the case of a
Specially Serviced Mortgage Loan or REO Property) of any annual operating
statements with respect to any Mortgaged Property or REO Property, an NOI
Adjustment Worksheet for such Mortgaged Property (with the annual operating
statements attached thereto as an exhibit).
The Master Servicer shall maintain one Operating Statement Analysis report
for each Mortgaged Property and REO Property (to the extent prepared by and
received from the Special Servicer in the case of any REO Property or any
Mortgaged Property constituting security for a Specially Serviced Mortgage
Loan). The Operating Statement Analysis report for each Mortgaged Property
(other than any such Mortgaged Property which is REO Property or constitutes
security for a Specially Serviced Mortgage Loan) is to be updated by the Master
Servicer and such updated report delivered to the Trustee on the Master Servicer
Remittance Date which is no earlier than thirty days after receipt by the Master
Servicer of updated operating statements for such Mortgaged Property. The Master
Servicer will use the "normalized" column from the NOI Adjustment Worksheet to
update the Operating Statement Analysis report and will use any operating
statements received with respect to any Mortgaged Property (other than any such
Mortgaged Property which is REO Property or constitutes security for a Specially
Serviced Mortgage Loan) to update the Operating Statement Analysis report for
such Mortgaged Property, such updates to be completed and copies thereof sent to
the Trustee within thirty days after receipt of the necessary information.
(e) No later than 12:00 noon Central time on the Master Servicer Remittance
Date, beginning in May 1998, the Master Servicer shall prepare and deliver to
the Trustee and the Special Servicer, a Watch List of all Mortgage Loans that
the Master Servicer has determined are in jeopardy
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of becoming Specially Serviced Mortgage Loans. For this purpose, Mortgage Loans
that are in jeopardy of becoming Specially Serviced Mortgage Loans shall
include, without limitation: (i) Mortgage Loans having a current Debt Service
Coverage Ratio that is 80% or less of the trailing twelve-month Debt Service
Coverage Ratio as of the Cut-off Date or having a current trailing twelve-month
Debt Service Coverage Ratio that is less than 1.00x, (ii) Mortgage Loans as to
which any required inspection of the related Mortgaged Property conducted by the
Master Servicer indicates a problem that the Master Servicer determines can
reasonably be expected to materially adversely affect the cash flow generated by
such Mortgaged Property, (iii) Mortgage Loans which have come to the Master
Servicer's attention in the performance of its duties under this Agreement
(without any expansion of such duties by reason hereof) that (A) any tenant
occupying 25% or more of the space in the related Mortgaged Property has vacated
(without being replaced by a comparable tenant and lease) or been the subject of
bankruptcy or similar proceedings or (B) relate to a borrower or an affiliate
that is the subject of a bankruptcy or similar proceeding, (iv) Mortgage Loans
that are at least one full Collection Period delinquent in payment, and (v)
Mortgage Loans that are within 60 days of maturity. Any such Watch List may
include any disclaimers the Master Servicer deems appropriate.
The Special Servicer shall report to the Master Servicer any of the
foregoing events promptly upon the Special Servicer having knowledge of such
event. In addition, in connection with their servicing of the Mortgage Loans,
the Master Servicer and the Special Servicer shall provide to each other and to
the Trustee written notice of any event that comes to their knowledge with
respect to a Mortgage Loan or REO Property that the Master Servicer or the
Special Servicer, respectively, determines, in accordance with Servicing
Standards, would have a material adverse effect on such Mortgage Loan or REO
Property, which notice shall include an explanation as to the reason for such
material adverse effect.
(f) At least two Business Days prior to each Master Servicer Remittance
Date, the Special Servicer shall deliver, or cause to be delivered, to the
Master Servicer and, upon the request of any of the Trustee, the Depositor or
either Rating Agency, to such requesting party, the following reports with
respect to the Specially Serviced Mortgage Loans (and, if applicable, the
related REO Properties), providing the required information as of the Due Date:
(i) a Delinquent Loan Status Report; (ii) an Historical Loss Estimate Report;
(iii) an Historical Loan Modification Report; (iv) an REO Status Report; (v)
Comparative Financial Status Reports with respect to all Specially Serviced
Mortgage Loans; (vi) a Watch List; and (vii) CSSA Reports, as defined. Such
reports shall be presented in writing and on a computer readable magnetic
medium.
(g) The Special Servicer shall deliver or cause to be delivered to the
Master Servicer and, upon the request of any of the Trustee, the Depositor or
any Rating Agency, to such requesting party, the following materials, in each
case to the extent that such materials or the information on which they are
based have been received by the Special Servicer:
(i) Annually, on or before June 10 of each year, commencing with June
10, 1998, with respect to each Specially Serviced Mortgage Loan and REO
Mortgage Loan, an Operating Statement Analysis for the related Mortgaged
Property or REO Property as of the end of the preceding calendar year,
together with copies of the operating statements and rent rolls for the
related Mortgaged Property or REO Property as of the end of the preceding
calendar year. The Special Servicer shall use its best reasonable efforts
to obtain such annual
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operating statements and rent rolls with respect to each Mortgaged Property
constituting security for a Specially Serviced Mortgage Loan and each REO
Property, which efforts shall include a letter sent to the related
Mortgagor or other appropriate party each quarter (followed up with
telephone calls) requesting such annual operating statements and rent rolls
until they are received.
(ii) Within 10 days of receipt by the Special Servicer of any annual
operating statements with respect to any Mortgaged Property relating to a
Specially Serviced Mortgage Loan, or at least six months of operating
information with respect to any REO Property, an NOI Adjustment Worksheet
for such Mortgaged Property or REO Property (with the annual operating
statements attached thereto as an exhibit).
The Special Servicer shall maintain one Operating Statement Analysis report
for each Mortgaged Property securing a Specially Serviced Mortgage Loan and REO
Property. The Operating Statement Analysis report for each Mortgaged Property
which constitutes security for a Specially Serviced Mortgage Loan or is an REO
Property is to be updated by the Special Servicer and such updated report
delivered to the Master Servicer within ten days after receipt by the Special
Servicer of updated operating statements for each such Mortgaged Property. In
addition, the Special Servicer shall with respect to any such report provide
each such report to the Master Servicer in the then applicable CSSA format. The
Special Servicer will use the "normalized" column from the NOI Adjustment
Worksheet to update the Operating Statement Analysis report and will use any
operating statements received with respect to any Mortgaged Property which
constitutes security for a Specially Serviced Mortgage Loan or is an REO
Property to update the Operating Statement Analysis report for such Mortgaged
Property, such updates to be completed and copies thereof sent to the Master
Servicer within ten days after receipt of the necessary information.
(h) The Trustee shall be entitled to rely conclusively on and shall not be
responsible for the content or accuracy of any information provided to it by the
Master Servicer or the Special Servicer pursuant to this Agreement.
(i) The Trustee shall send copies of the reports received by it pursuant to
Sections 8.14(a) and (b) to the Depositor, Heller, the Holders of the Privately
Offered Certificates 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 (and except to the extent
not permitted by law or under any of the Mortgage Loan Documents), 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
Underwriters, 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-proprietary and 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
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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 Underwriters 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 Underwriters, 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 attorneys' 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 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.
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(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
that 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. Any Holder of a Privately Offered
Certificate may, upon request to the Trustee (which may be in the form of a
standing request for as long as such Holder remains a Holder of any such
Certificates), obtain a copy of any report or other information (to the extent
the Trustee has such report or other information in its possession) delivered to
the Rating Agencies under this Agreement.
Section 8.16. Rule 144A Information. For so long as any of the Certificates
are "restricted securities" within the meaning of Rule 144A under the Securities
Act, each of 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 investment in the 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 one of the other 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 Underwriters 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 Underwriters) 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
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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, the Special Servicer and the Depositor a
copy of each such written report within 30 days of the related inspection, and
the Trustee shall deliver to the Holders of the Privately Offered Certificates a
copy of each such written report within 15 days of receipt of such report from
the Master Servicer.
(b) The Special Servicer shall perform (or cause to be performed), as soon
as practicable after the commencement of its servicing obligations hereunder, a
physical inspection of each REO Property and each Mortgaged Property
constituting collateral for a Specially Serviced Mortgage Loan, and thereafter
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 the Master
Servicer, the Trustee, the Holders of the Privately Offered Certificates and the
Depositor a copy of each such written report within 60 days of the related
inspection.
(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, the Depositor and the
Trustee, and the Trustee shall deliver copies of such items to the Holders of
the Privately Offered Certificates.
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Section 8.18. Modifications, Waivers, Amendments, Extensions and Consents.
(a) Subject to the limitations of Section 12.4 hereof, the Special Servicer
and Master Servicer, as applicable, shall have the following powers:
(i) The Special Servicer in accordance with the Servicing Standard,
may agree to any modification, waiver, amendment or consent of or relating
to any non-Money Term of a Mortgage Loan that is not a Specially Serviced
Mortgage Loan so long as such amendment will not result in an Adverse REMIC
Event. The Special Servicer may extend the maturity date of any Balloon
Mortgage Loan that is not a Specially Serviced Mortgage Loan to a date that
is not more than 60 days following the original Maturity Date and not later
than two years prior to the Rated Final Distribution Date, if in the
Special Servicer's sole judgment exercised in good faith and in accordance
with the Servicing Standard (and evidenced by an Officer's Certificate), a
default in the payment of the Balloon Payment is reasonably foreseeable and
such extension is reasonably likely to produce a greater recovery on a net
present value basis than liquidation of such Mortgage Loan. The Special
Servicer shall process all such extensions and shall be entitled to (as
additional servicing compensation) 100% of any extension fees collected
from a Mortgagor with respect to any such extension.
The Master Servicer may modify or amend the terms of any Mortgage Loan
without the consent of the Special Servicer in order to (i) cure any
ambiguity therein or (ii) correct or supplement any provisions therein
which may be inconsistent with any other provisions therein or correct any
error, provided that such modification or amendment would not cause an
Adverse REMIC Event to occur. Other than as set forth above in this Section
8.18(a)(i) the Master Servicer shall not agree to any modification or
amendment of a Mortgage Loan or any waiver or consent (other than
immaterial waivers and consents made in the ordinary course of business).
(ii) The Special Servicer may require, in its discretion, as a
condition to granting any request by a Mortgagor for any consent,
modification, waiver or amendment, that such Mortgagor pay to the Special
Servicer a reasonable and customary modification fee to the extent
permitted by law. The Special Servicer may charge the Mortgagor for any
costs and expenses (including attorneys' fees) incurred by the Special
Servicer in connection with any request for a modification, waiver or
amendment. The failure or inability of the Mortgagor to pay any such costs
and expenses shall not impair the right of the Special Servicer to cause
such costs and expenses, and interest thereon at the Advance Rate, to be
paid or reimbursed by the Trust as a Servicing Advance (to the extent not
paid by the Mortgagor).
(iii) Each of the Special Servicer and the Master Servicer, as
applicable, shall notify the Trustee of any modification, waiver or
amendment of any term of any Mortgage Loan permitted by it under this
Section and the date thereof, and shall deliver to the Trustee for deposit
in the related Mortgage File, an original counterpart of the agreement
relating to such modification, waiver or amendment, promptly following the
execution thereof
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except to the extent such documents have been submitted to the applicable
recording office, in which event the Special Servicer or the Master
Servicer, as applicable, shall promptly deliver copies of such documents to
the Trustee. The Trustee shall deliver copies of such documents to the
Holders of the Privately Offered Certificates within 15 days of receipt by
the Trustee thereof.
(b) Subject to the limitation of Section 12.4 hereof, the Special Servicer,
in accordance with the Servicing Standard, shall have the following additional
powers:
(i) The Special Servicer may enter into a modification, waiver or
amendment (including, without limitation, the substitution or release of
collateral or the pledge of additional collateral) of the terms of a
Specially Serviced Mortgage Loan, including any modification, waiver or
amendment to (a) reduce the amounts owing under any Specially Serviced
Mortgage Loan by forgiving principal, accrued interest or any Prepayment
Premium, (b) reduce the amount of the Monthly Payment on any Specially
Serviced Mortgage Loan, including by way of a reduction in the related
Mortgage Rate, (c) forebear in the enforcement of any right granted under
any Mortgage Note or Mortgage relating to a Specially Serviced Mortgage
Loan, (d) extend the Maturity Date of any Specially Serviced Mortgage Loan
and/or (e) accept a principal prepayment on any Specially Serviced Mortgage
Loan during any period during which voluntary Principal Prepayments are
prohibited, provided that (1) the related Mortgagor is in default with
respect to the Specially Serviced Mortgage Loan or, in the judgment of the
Special Servicer, such default is reasonably foreseeable, (2) in the
reasonable judgment of the Special Servicer such modification would
increase the recovery on the Mortgage Loan to Certificateholders on a net
present value basis (the relevant discounting of amounts that will be
distributable to Certificateholders to be performed at the related Mortgage
Rate) and (3) such modification, waiver or amendment would not cause an
Adverse REMIC Event to occur.
In no event shall the Special Servicer (i) extend the Maturity Date of a
Specially Serviced Mortgage Loan beyond a date that is two years prior to the
Final Rated Distribution Date; (ii) extend the Maturity Date of any Specially
Serviced Mortgage Loan at an interest rate below the then-prevailing interest
rate for comparable loans at the time of such modification as determined by the
Special Servicer (such limitation of extensions made at below market rates shall
not limit the ability of the Special Servicer to extend the Maturity Date of any
Specially Serviced Mortgage Loan at an interest rate at or in excess of the
prevailing rate for comparable loans at the time of such modification); (iii) if
the Specially Serviced Mortgage Loan is secured by a ground lease, extend the
Maturity Date of such Specially Serviced Mortgage Loan beyond a date which is
less than 10 years prior to the expiration of the term of such ground lease;
(iv) reduce the Mortgage Rate of a Specially Serviced Mortgage Loan to a rate
below the then-prevailing interest rate for comparable loans at the time of such
modification, as determined by the Special Servicer; or (v) defer interest due
on any Specially Serviced Mortgage Loan in excess of 10% of the Stated Principal
Balance of such Specially Serviced Mortgage Loan or defer the collection of
interest on any Specially Serviced Mortgage Loan without accruing interest on
such deferred interest at a rate at least equal to the Mortgage Rate of such
Specially Serviced Mortgage Loan.
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Notwithstanding the foregoing, if a Mortgage Loan is a Balloon Loan that
has failed to make the Balloon Payment at its scheduled maturity, and such
Balloon Loan is not a Specially Serviced Mortgage Loan (other than by reason of
failure to make the Balloon Payment) and has not been delinquent in the
preceding 12 months (other than with respect to the Balloon Payment), then in
addition to the other alternatives specified above, the Special Servicer may
make up to three one-year extensions at the existing Mortgage Rate for such
Mortgage Loan; provided that in no event shall any such extension extend beyond
the date that is two years prior to the Final Rated Distribution Date.
The determination of the Special Servicer contemplated by clause (2) of the
proviso to the first paragraph of this Section 8.18(b)(i) and clause (ii) of the
second paragraph of this Section 8.18(b)(i) shall be evidenced by an Officer's
Certificate to such effect delivered to the Trustee and the Master Servicer and
describing in reasonable detail the basis for the Special Servicer's
determination. The Special Servicer shall append to such Officer's Certificate
any information, including but not limited to income and expense statements,
rent rolls, property inspection reports and appraisals, that support such
determination.
(ii) In the event the Special Servicer intends to permit a Mortgagor
to substitute collateral for all or any portion of a Mortgaged Property
pursuant to Section 8.18(b)(i) or pledge additional collateral for the
Mortgage Loan pursuant to Section 8.18(b)(i), if the security interest of
the Trust in such collateral would be perfected by possession, or if such
collateral requires special care or protection, then prior to agreeing to
such substitution or addition of collateral, the Special Servicer shall
make arrangements for such possession, care or protection, and prior to
agreeing to such substitution or addition of collateral (or such
arrangement for possession, care or protection) shall obtain the prior
written consent of the Trustee with respect thereto (which consent shall
not be unreasonably withheld, delayed or conditioned); provided, however,
that any such substitution or addition of collateral shall require Rating
Agency Confirmation; provided further, however, that the Trustee shall not
be required (but has the option) to consent to any substitution or addition
of collateral or to hold any such collateral which will require the Trustee
to undertake any additional duties or obligations or incur any additional
expense.
(iii) The Special Servicer will promptly deliver to the Master
Servicer, the Operating Adviser, the Rating Agencies and the Trustee a
notice, specifying any such modifications, waivers or amendments, such
notice identifying the affected Specially Serviced Mortgage Loan. Such
notice shall be delivered to the Trustee and shall set forth the reasons
for such waiver, modification, or amendment (including, but not limited to,
information such as related income and expense statements, rent rolls,
occupancy status, property inspections, and an internal or external
appraisal performed in accordance with MAI standards and methodologies
(and, if done externally, the cost of such appraisal shall be recoverable
as a Servicing Advance subject to the provisions of Section 4.2 hereof)).
The Special Servicer shall also deliver to the Trustee (or the Custodian),
for deposit in the related Mortgage File, an original counterpart of the
agreement relating to such modification, waiver or amendment promptly
following the execution thereof.
(iv) No fee described in this Section shall be collected by the
Special Servicer from the Mortgagor (or on behalf of the Mortgagor) in
conjunction with any consent
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or any modification, waiver or amendment of the Mortgage Loan if the
collection of such fee would cause such consent, modification, waiver or
amendment to be a "significant modification" of the Mortgage Note within
the meaning of Treasury Regulation ss. 1.860G-2(b). Subject to the
foregoing, the Special Servicer shall use its reasonable efforts, to
collect any modification fees and other expenses connected with a permitted
modification of a Mortgage Loan from the Mortgagor. The inability of the
Mortgagor to pay any costs and expenses of a proposed modification shall
not impair the right of the Special Servicer, the Master Servicer or the
Trustee to be reimbursed by the Trust for such expenses (including any cost
and expense associated with the Opinion of Counsel referred to in this
Section).
(v) The Special Servicer shall cooperate with the Master Servicer (as
provided in Section 8.6) in connection with assignments and assumptions of
Mortgage Loans that are not Specially Serviced Mortgage Loans.
(vi) Notwithstanding anything herein to the contrary, the Special
Servicer shall not be permitted to take or refrain from taking any action
pursuant to instructions from the Operating Adviser that would cause it to
violate any term or provision of this Agreement, including the REMIC
Provisions and the Servicing Standard.
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 by the
close of the third taxable year of the REMIC following the taxable year in which
the Trust Fund acquires ownership of such REO Property for purposes of Section
860G(a)(8) of the Code (such date, the "REO Sale Deadline"), unless the Special
Servicer either (i) applies for, more than 60 days prior to the REO Sale
Deadline, 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 REO Sale Deadline 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 beyond the REO Sale
Deadline 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
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expenses payable therefrom), Insurance Proceeds, Condemnation Proceeds and
Liquidation Proceeds received in respect of an REO Property, subject to
withdrawal by the Master Servicer 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 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 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.
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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, consistent with the Servicing
Standard, 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. 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 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 or an
Independent Contractor chosen by 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 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 result in an Adverse REMIC Event. Except as
otherwise expressly provided herein, the Special Servicer shall not enter into
any lease, contract or other agreement that causes REMIC I to receive, and
(unless required to do so under any lease, contact or agreement to which the
Special Servicer or the Trust may become a party or a successor to a party due
to a foreclosure, deed-in-lieu of foreclosure or other similar exercise of a
creditor's rights or remedies with respect to a Mortgage Loan) shall not cause
or allow REMIC I to receive, any "net income from foreclosure property" that is
subject to taxation under the REMIC Provisions. Subject to the foregoing,
however, the Special Servicer shall have full power and authority to do any and
all things in connection therewith as are in the best interests of and for the
benefit of the Certificateholders in accordance with the Servicing Standard (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
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Master Servicer (at the direction of the Special Servicer) shall advance from
its own funds such amount as is necessary for such purposes unless 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 shall 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:
(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) 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.
(b) 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
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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.
Section 8.22. Representations, Warranties and Covenants of the Master
Servicer and the Special Servicer.
(a) (i) The Master Servicer, in its capacity as Master 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:
(A) the Master Servicer is duly organized, validly existing and
in good standing as a limited partnership under the laws of the State
of Delaware, and is in compliance with the laws of each State in which
any Mortgaged Property is located to the extent necessary to perform
its obligations under this Agreement, except where the failure to so
qualify or comply would not materially adversely affect the Master
Servicer's ability to perform its obligations hereunder in accordance
with the terms of this Agreement;
(B) the Master Servicer has the full power and authority to
execute, deliver, perform, and to enter into and consummate all
transactions and obligations contemplated by this Agreement. The
Master Servicer 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
the Master Servicer enforceable against the Master Servicer 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;
(C) 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 the Master Servicer will not (A) result in a
breach of any term or provision of its organizational documents 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;
(D) there is no litigation pending or, to the Master Servicer's
knowledge, threatened against it, the outcome of which would, if
adversely determined,
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reasonably be expected to materially and adversely affect the
execution, delivery and performance by, or the enforceability against,
the Master Servicer 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;
(E) no consent, approval, authorization, qualification,
registration, filing, notice or order of any court or governmental
agency or body is required for the execution, delivery and performance
by the Master Servicer of, or compliance by the Master Servicer with,
this Agreement, or the consummation of the transactions contemplated
hereby, other than any such consents, approvals, authorizations,
qualifications, registrations, filings, notices or orders as have been
obtained or made or where the lack of such consent, approval,
authorization, qualification, registration, filing, notice or order
would not have a material adverse effect on the performance of the
Master Servicer under this Agreement; and
(F) the performance of the services by the Master Servicer
contemplated by this Agreement are in the ordinary course of business
of the Master Servicer.
(i) It is understood that the representations and warranties
set forth in this Section 8.22(a) shall survive the execution and
delivery of this Agreement.
(ii) Upon discovery by any of the parties hereto of a breach
of any of the foregoing representations and warranties that
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.
(iii) Any successor Master 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)(i), subject to such
appropriate modifications to the representation and warranty set
forth in Section 8.22(a)(i)(A) to accurately reflect such
successor's jurisdiction of organization and whether it is a
corporation, partnership, bank, association or other type of
organization.
(b) (i) The Special Servicer, in its capacity as 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:
(A) the Special Servicer is duly organized, validly existing and
in good standing as a corporation under the laws of the State of
Florida, and is 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 Special
Servicer's ability to perform its obligations hereunder in accordance
with the terms of this Agreement;
(B) the Special Servicer has the full power and authority to
execute, deliver, perform, and to enter into and consummate all
transactions and obligations contemplated by this Agreement. The
Special Servicer has duly and validly authorized the
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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 the Special Servicer enforceable against the Special
Servicer 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;
(C) 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 the Special Servicer 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;
(D) there is no litigation pending or, to the Special Servicer's
knowledge, threatened against it, the outcome of which would, if
adversely determined, reasonably be expected to materially and
adversely affect the execution, delivery and performance by, or the
enforceability against, the Special Servicer 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;
(E) no consent, approval, authorization, qualification,
registration, filing, notice or order of any court or governmental
agency or body is required for the execution, delivery and performance
by the Special Servicer of, or compliance by the Special Servicer
with, this Agreement, or the consummation of the transactions
contemplated hereby, other than any such consents, approvals,
authorizations, qualifications, registrations, filings, notices or
orders as have been obtained or made or where the lack of such
consent, approval, authorization, qualification, registration, filing,
notice or order would not have a material adverse effect on the
performance of the Special Servicer under this Agreement; and
(F) the performance of the services by the Special Servicer
contemplated by this Agreement are in the ordinary course of business
of the Special Servicer.
(i) It is understood that the representations and warranties
set forth in this Section 8.22(b) shall survive the execution and
delivery of this Agreement.
(ii) Upon discovery by any of the parties hereto of a breach
of any of the foregoing representations and warranties that
materially and adversely affects the
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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.
(iii) Any successor 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(b)(i), subject to such
appropriate modifications to the representation and warranty set
forth in Section 8.22(b)(i)(A) to accurately reflect such
successor's jurisdiction of organization and whether it is a
corporation, partnership, bank, association or other type of
organization.
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, that Rating
Agency Confirmation shall have been obtained with respect to 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
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
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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 party to this Agreement; (iii) the purchaser or transferee has assets
in excess of $15,000,000; (iv) a Rating Agency Confirmation shall have been
obtained with respect to 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 appoint Sub-Servicers in accordance with Section 8.4 hereof,
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 for any action
taken or for refraining from the taking of any action in good faith using
reasonable 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 that 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 reckless 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 that 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 that 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. 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
and the Special Servicer each shall have
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the right to rely on information provided to it by the other (unless the Master
Servicer and the Special Servicer are the same party) 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 that 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 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) that constitutes a Servicing Advance (and is
otherwise specifically reimbursable hereunder); (iii) that 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 reckless disregard of such obligations or
duties, or (C) any violation by such party of any state or federal securities
law; or (iv) imposed by any taxing authority if such loss, liability or expense
is not specifically reimbursable pursuant to the terms of this Agreement. 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 that 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
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reckless disregard of the Master Servicer's obligations and duties hereunder,
and if in any such situation the Master Servicer is replaced, the parties hereto
agree that the amount of such claims, losses, penalties, fines, forfeitures,
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 that 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, 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 that 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, 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 and any similar tax reporting
obligations under State law 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 three
Business Days prior to the Distribution 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 G-2.
(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) In addition, no later than 30 days after a Servicing Transfer Event for
a Mortgage Loan, the Special Servicer shall deliver to each Rating Agency and
the Operating Adviser a report (the "Asset Status Report") with respect to such
Mortgage Loan and the related Mortgaged Property. Such Asset Status Report shall
set forth the following information to the extent reasonably determinable:
(i) summary of the status of such Specially Serviced Mortgage Loan and
any negotiations with the related Mortgagor;
(ii) a discussion of the legal and environmental considerations
reasonably known to the Special Servicer, consistent with the Servicing
Standard, that are applicable to the exercise of remedies as aforesaid and
to the enforcement of any related guaranties or other collateral for the
related Mortgage Loan and whether outside legal counsel has been retained;
(iii) the most current rent roll and income or operating statement
available for the related Mortgaged Property;
(iv) the Special Servicer's recommendations on how such Specially
Serviced Mortgage Loan might be returned to performing status and returned
to the Master Servicer for regular servicing or otherwise realized upon;
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(v) the Appraised Value of the Mortgaged Property together with the
assumptions used in the calculation thereof; and
(vi) such other information as the Special Servicer deems relevant in
light of the Servicing Standard.
If within 10 Business Days of receiving an Asset Status Report, the
Operating Adviser does not disapprove such Asset Status Report in writing, the
Special Servicer shall implement the recommended action as outlined in such
Asset Status Report; provided, however, that the Special Servicer may not take
any action that is contrary to applicable law or the terms of the applicable
Mortgage Loan documents or to the Servicing Standard. If the Operating Adviser
disapproves such Asset Status Report, the Special Servicer will revise such
Asset Status Report and deliver to the Operating Adviser, the Rating Agencies
and the Master Servicer a new Asset Status Report as soon as practicable, but in
no event later than 30 days after such disapproval. The Special Servicer shall
revise such Asset Status Report as described above in this Section until the
Operating Adviser shall fail to disapprove such revised Asset Status Report in
writing within 10 Business Days of receiving such revised Asset Status Report or
until the Special Servicer makes one of the determinations described below. The
Special Servicer may, from time to time, modify any Asset Status Report it has
previously delivered and implement such report, provided such report shall have
been prepared, reviewed and not rejected pursuant to he terms of this Section.
Notwithstanding the foregoing, the Special Servicer (i) may, following the
occurrence of an extraordinary event with respect to the related Mortgaged
Property, take any action set forth in such Asset Status Report before the
expiration of a 10 Business Day period if the Special Servicer has reasonably
determined that failure to take such action would materially and adversely
affect the interests of the Certificateholders and it has made a reasonable
effort to contact the Operating Adviser and (ii) in any case, shall determine
whether such affirmative disapproval is not in the best interest of all the
Certificateholders pursuant to the Servicing Standard. Upon making such
determination, the Special Servicer shall notify the Trustee of such rejection
and deliver to the Trustee a proposed notice to Certificateholders which shall
include a copy of the Asset Status Report, and the Trustee shall send such
notice to all Certificateholders. If the majority of such Certificateholders, as
determined by Voting Rights, fail, within 5 days of the Trustee's sending such
notice, to reject such Asset Status Report, the Special Servicer shall implement
the same. If the Asset Status Report is rejected by the Certificateholders, the
Special Servicer shall revise such Asset Status Report as described above in
this Section. The Trustee shall be entitled to reimbursement from the Trust Fund
for the reasonable expenses of providing such notices.
The Special Servicer shall have the authority to meet with the Mortgagor
for any Specially Serviced Mortgage Loan and take such actions consistent with
the Servicing Standard and the related Asset Status Report. The Special Servicer
shall not take any action inconsistent with the related Asset Status Report,
unless such action would be required in order to act in accordance with the
Servicing Standard.
No direction of the Operating Adviser shall (a) require or cause the
Special Servicer to violate the terms of a Specially Serviced Mortgage Loan,
applicable law or any provision of this Agreement, including the Special
Servicer's obligation to act in accordance with the Servicing Standard and to
maintain the REMIC status of each of the REMICs, or (b) result in the imposition
of a "prohibited transaction" or "prohibited contribution" tax under the REMIC
Provisions, or (c) expose
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the Master Servicer, the Special Servicer, the Depositor, either Seller, the
Trust Fund, the Trustee or their officers, directors, employees or agents to any
additional claim, suit or liability or (d) materially expand the scope of the
Special Servicer's or Master Servicer's responsibilities under this Agreement.
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) The Special Servicer may offer to sell for cash to any Person any REO
Property or Defaulted Mortgage Loan. In the case of REO Property, the Special
Servicer shall offer to sell such REO Property no later than the time determined
by the Special Servicer to be sufficient to result in the sale of such REO
Property on or prior to the date specified in Section 8.19(a), and in any event
prior to the Final Rated Distribution Date. The Special Servicer shall give the
Operating Adviser and the Trustee not less than five days' prior written notice
of its intention to sell any such Defaulted Mortgage Loan or REO Property, and
in respect of such sale, the Special Servicer shall offer such Defaulted
Mortgage Loan or REO Property for sale in a fair auction or other manner as is
consistent with the Servicing Standard and shall accept the highest cash bid
received in such auction or other procedure from any Person other than an
Interested Person for any Defaulted Mortgage Loan or REO Property in an amount,
except as otherwise provided in this Section, at least equal to the Purchase
Price therefor.
In the absence of a bid in an amount at least equal to the Purchase Price
(after deducting allocable expenses), the Special Servicer shall accept the
highest cash bid received from any Person other than any Interested Person.
The Special Servicer shall not be obligated by either of the foregoing
paragraphs or otherwise to accept the highest cash bid if the Special Servicer
determines, in accordance with the Servicing Standard, that rejection of such
bid would be in the best interests of the Certificateholders. In addition, the
Special Servicer may accept a lower bid (including a bid lower than the Purchase
Price) if it determines, in accordance with the Servicing Standard, that
acceptance of such bid would be in the best interests of the Certificateholders
(for example, if the prospective buyer making the lower bid is more likely to
perform its obligations, or the terms offered by the prospective buyer making
the lower bid are more favorable), provided, that if any Defaulted Mortgage Loan
or REO Property as to which an Appraisal Reduction has occurred is to be sold by
the Special Servicer, then the Special Servicer shall not, without the approval
of the Operating Adviser, if any, accept any bid for such loan or property that
is less than 90% of the appraised value of the related Mortgaged Property (based
on the appraisal used in determining the related Appraisal Reduction). The
Special Servicer shall determine no later than six months prior to the end of
the REO Sale Deadline with respect to any REO Property whether a sale of such
REO Property pursuant to any bids being made with respect thereto is in the best
economic interests of the Certificateholders as a whole. If the Special Servicer
so determines in accordance with the Servicing Standard that such a sale would
not be in the best interests of the Certificateholders, the Special Servicer
shall seek an extension of such period in the manner described in Section 8.19.
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(b) 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, or representation or warranty by, the Trustee, the
Depositor, the Special Servicer, the Master Servicer, or the Trust.
Notwithstanding the foregoing, nothing herein shall limit the liability of the
Master Servicer, the Special Servicer or the Trustee to the Trust and the
Certificateholders for failure to perform its duties in accordance herewith.
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
is sold if the sale is consummated in accordance with the terms of this
Agreement.
(c) The proceeds of any sale after deduction of the expenses of such sale
incurred in connection therewith shall be deposited within one Business Day in
the Collection Account.
(d) Notwithstanding anything herein to the contrary, the Special Servicer
shall not be required to take or refrain from taking any action pursuant to
instructions from (or which require the approval of) the Operating Adviser that
would cause it to violate any term or provision of this Agreement, the REMIC
Provisions or the Servicing Standard.
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 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 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 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 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,
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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
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 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; and (ii) an Opinion of Counsel (which shall not be
an expense of the Trustee or Trust) to the effect 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
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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 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 Trustee shall, at the Trustee's
expense, prepare for filing, execute and properly file with the Securities and
Exchange Commission, any and all reports, statements and information, including,
without limitation Form 10-K, Form 10-Q and Form 8-K, respecting the Trust Fund
and/or the Certificates required or specifically provided herein to be filed on
behalf of the Trust under the Exchange Act. The Master Servicer and the Special
Servicer shall provide any items required to be delivered by either of them
under this Agreement in a format acceptable to the Trustee for electronic filing
via the EDGAR system (in addition to any other required format). The Trustee
shall, at the Trustee's expense, 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 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 3:00 p.m.
(New York City time) on the relevant Master Servicer Remittance 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
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(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
(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, 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
(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
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(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 Servicer (in either case for purposes of this Section 9.1(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 and for recovery of amounts due the
Defaulting Party out of the proceeds of the Mortgage Loans). 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 that 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 (together with Advance Interest thereon) 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 (except for liabilities incurred prior to the Event of Default)
relating thereto and arising thereafter placed on the Master
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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 representations and warranties of the Master
Servicer or the Special Servicer and the Trustee shall not 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 that 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 an approved master servicer or special servicer, as the case may be, by each
Rating Agency, promptly appoint, or petition a court of competent jurisdiction
for the appointment of, 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 Rating Agency Confirmation), 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. No appointment of a successor to
the Master Servicer or the Special Servicer hereunder shall be effective until
the assumption by the successor to the Master Servicer or the Special Servicer
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 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 66 2/3% 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) Subject to Section 10.3, 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, the Majority Certificateholder of the
Controlling Class 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 1% of the Initial Pool Balance.
The Depositor, the Master Servicer, the Special Servicer, the majority holders
of the Controlling Class 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 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
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purchase the assets of the Trust in accordance with this Agreement. The
"Termination Price" shall equal the greater of (x) the sum of (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 a
Qualified 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) (or, solely
in the case where the Special Servicer is effecting such purchase, the aggregate
amount of unreimbursed Servicing Advances made by the Special Servicer, together
with any Advance Interest accrued and payable to the Special Servicer in respect
of such Servicing Advances and any unpaid Special Servicing Fees remaining
outstanding (which items shall be deemed to have been paid or reimbursed to the
Special Servicer in connection with such purchase); (y) the fair market value of
all remaining assets of REMIC I; and (z) the amount that would be sufficient to
pay the outstanding Certificate Principal Balance of each Class of Certificates,
Distributable Certificate Interest thereon, and Distributable Certificate
Interest on the Class X Certificates for the final Distribution Date.
In the event that the Depositor, the Master Servicer, the Special Servicer,
the Majority Certificateholder of the Controlling Class 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 (i) 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 and (ii) deliver notice to the
Trustee of its intention to effect such purchase. 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 the later of (a) ten days
prior to the date of such termination and (b) the date the Trustee receives
notice of such termination. Such notice shall specify (A) the Distribution Date
upon which final distribution on the
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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 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 escheat, 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 or any other
termination of the Trust under this Article X, the Trust and each REMIC Pool
shall be terminated in accordance with the following additional requirements,
unless in the case of a termination under Section 10.1 hereof, the Final
Purchaser delivers to the Trustee an Opinion of Counsel at the expense of the
Final Purchaser (or, in the case of any other termination, the Trustee shall
obtain such Opinion of Counsel at the expense of the Trust Fund) 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) within 89 days prior to the final Distribution Date set forth in
the notice given by the Trustee under Section 10.2, the Trustee shall adopt
a plan of complete liquidation prepared by the Final Purchaser and meeting
the requirements for a qualified liquidation for each REMIC Pool under
Section 860F of the Code and any regulations thereunder;
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(ii) during such 90-day liquidation period and at or after the
adoption of the plans of complete liquidation and at or prior to the final
Distribution Date, the Trustee shall sell all of the remaining Mortgage
Loans and any REO Properties held by the Trust to the Final Purchaser for
cash in an amount equal to the Termination Price, such cash shall be
deposited into the Collection Account, shall be deemed distributed on the
REMIC I Regular Interests in retirement thereof, shall be deemed
distributed on the REMIC II Regular Interests in retirement thereof, and
shall be distributed to the Certificateholders in retirement of the
Certificates;
(iii) at the time of 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 after making such final
deemed payment or payments (other than cash retained to meet claims), and
REMIC I, REMIC II and REMIC III shall terminate at that time; and
(iv) in no event may the final payment on the REMIC I Interests, the
REMIC II Interests, the REMIC III Regular Certificates, or the Class R-III
Certificates be made after the 89th day from the date on which such plans
of complete liquidation are adopted. The Trustee shall specify the first
day of 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.
(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 in accordance with the foregoing requirements, 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
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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 60 days
after its receipt of such notice, request and offer of indemnity, shall have
neglected or refused to institute any such action, suit or proceeding and no
direction inconsistent with such written request has been given the Trustee
during such 60-day period by such Certificateholders; it being understood and
intended, and being expressly covenanted by each Certificateholder with every
other Certificateholder and the Trustee, that no one or more Holders of
Certificates shall have any right in any manner whatsoever by virtue 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 that (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 Service 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
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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 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 on behalf of the Trust 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 and any other assets
constituting REMIC I (as set forth on the definition of REMIC I) 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
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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 on behalf of REMIC II to treat the
segregated pool of assets 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 on behalf of REMIC III 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 A1,
Class A2, Class B, Class C, Class D, Class E, Class F, Class G, Class H, Class
J, Class K and Class L Certificates and each Component Interest of the Class X
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 Treasury regulation Section 1.860D-1(b)(1)) 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. The latest
possible maturity date for the REMIC I Interests, the REMIC II Interests and the
REMIC III Certificates shall be the Final Rated Distribution Date.
(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 within 30 days after the
Closing Date 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;
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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, that the Depositor,
the Master Servicer or the Special Servicer, as the case may be, has received or
prepared by virtue of its acting in such capacity hereunder and that 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 any of them or any cost or expense (including attorneys'
fees) incurred by any of them resulting from any error in any of such tax or
information returns 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, the Fiscal Agent 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, willful 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 or the Fiscal Agent
and 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 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
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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 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; provided that if Treasury Regulation shall be
modified to require another Person to be designated as Tax Matters Person, then
such Person shall become Tax Matters Person at such time. 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 in accordance with the REMIC
Provisions and Article X hereof.
(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, the tax on contributions to a REMIC set forth in
Section 860G(d) of the Code, or except as provided in Section 8.20(a) hereof,
result in the imposition of a tax on "net income from foreclosure property" as
defined in Section 860G(c) of the Code (any of the foregoing, an "Adverse REMIC
Event")), 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 to
have the Trustee, the Master Servicer, the Special Servicer, the Fiscal Agent or
the Holders of the Residual Certificates undertake such action.
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(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 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 shall 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
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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 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 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, subject to the "de minimus" exception of Treasury
Regulation Section 1.860D-1(b)(3).
(p) the Holders of the Class R-I, Class R-II and Class R-III Certificates
shall pay when due their pro rata share of any and all federal, state and local
taxes imposed on REMIC I, REMIC II or REMIC III, as applicable, or their
respective assets or transactions, including, without limitation, "prohibited
transaction" taxes, as defined in Section 860F of the Code, any tax on
contributions imposed by Section 860G(d) of the Code, and any tax on "net income
from foreclosure property" as defined in Section 860G(c) of the Code. To the
extent that such taxes are not paid by the Class R-I, Class R-II or Class R-III
Certificateholders, respectively, the Trustee shall pay such remaining REMIC
taxes out of current or future amounts otherwise distributable to the respective
Holder or, if no such amounts are available, out of other amounts held in the
Distribution Account.
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 the REMIC Pools in a "qualified
liquidation" as defined in Section 860F(a)(4) of the Code, or (iv) a repurchase
or substitution by any Seller, as contemplated by Article II hereof), nor
acquire any assets for the Trust, except as provided herein, 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, the REMIC III Regular
Certificates or the Component Interests of the
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Class X 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 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 failures to act taken in
reliance on an Opinion of Counsel or misinformation provided by the Master
Servicer, the Special Servicer, the Depositor or such Holders of the Residual
Certificates. 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.
Section 12.4. Modifications of Mortgage Loans. Notwithstanding anything to
the contrary in this Agreement, neither the Trustee, the Master Servicer nor the
Special Servicer shall permit any modification of any Money Term of a Mortgage
Loan or a Specially Serviced Mortgage Loan unless the Trustee and the Master
Servicer have received a Nondisqualification Opinion or a ruling from the
Internal Revenue Service (at the expense of the party making the request that
the Master Servicer or the Special Servicer modify the Mortgage Loan or a
Specially Serviced Mortgage Loan) to the effect that such modification would not
be treated as an exchange pursuant to Section 1001 of the Code (or, if it would
be so treated, would not be treated as a "significant modification" for purposes
of Treasury regulation Section 1.860G-2(b) of the Code).
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.
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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 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 ensuing 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 (x) no such amendment
shall adversely affect the status of any REMIC Pool as a REMIC and (y) 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 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
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<PAGE>
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).
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: John Kessler; (b) in the case of the
Trustee and the Fiscal Agent, at the Corporate Trust Office; (c) in the case of
Heller, Heller Financial Capital Funding, Inc., 500 West Monroe, 15th Floor,
Chicago, Illinois 60661, Attention: Securitization Manager; (d) in the case of
the Master Servicer, AMRESCO Services, L.P., 235 Peachtree Street, Suite 900,
Atlanta, Georgia 30363, facsimile number (404) 654-2478, Attention: Legal
Counsel; with a copy to AMRESCO Legal Department, Attention: General Counsel,
700 North Pearl Street, Suite 2400, LB342, Dallas, Texas 75201-7424, facsimile
number (214) 953-7757; (e) in the case of the Special Servicer, Lennar Partners,
Inc., 760 N.W. 107th Avenue, Miami, Florida 33172, facsimile number (305)
226-7691, Attention: Steve Engel; 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, and no
waiver of any right, remedy, power or privilege with respect to any occurrence
shall
164
<PAGE>
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 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;
(iii) waiver of a due-on-sale or due-on-encumbrance clause as provided
in Section 8.6;
(iv) any resignation or removal 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:
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<PAGE>
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 S&P, to:
Standard & Poor's Ratings Services
25 Broadway
New York, New York 10004
Attention: Commercial Mortgage Surveillance Manager
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 are for any other reason held to be the
property of the Depositor, then:
(i) This Agreement shall be deemed to be a security agreement.
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<PAGE>
(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 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) and 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, the REMIC II Regular Interests and
the Certificates; 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.
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<PAGE>
(b) The Depositor and, at the Depositor's direction, the Master Servicer
and the Trustee, at the Depositor's expense, 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 and at the expense 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 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.
168
<PAGE>
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 Rahbany
-------------------------------------
Name: Russell Rahbany
Title: Vice President
AMRESCO SERVICES, L.P.,
as Master Servicer
By: AMRESCO MORTGAGE CAPITAL, INC.,
its general partner
By: /s/ Daniel B. Kirby
---------------------------------
Name: Daniel B. Kirby
Title: Senior Vice President
LENNAR PARTNERS, INC.,
as Special Servicer
By: /s/ Shelly Rubin
-------------------------------------
Name: Shelly Rubin
Title: Vice President
LASALLE NATIONAL BANK,
as Trustee
By: /s/ Michael B. Evans
-------------------------------------
Name: Michael B. Evans
Title: First Vice President
ABN AMRO BANK N.V., as Fiscal Agent
By: /s/ Robert C. Smolka
-------------------------------------
Name: Robert C. Smolka
Title: Group Vice President
By: /s/ Irene Pazik
-------------------------------------
Name: Irene Pazik
Title: Vice President
169
<PAGE>
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On this 27th day of March, 1998, before me, a notary public in and for said
State, personally appeared Russell 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 Vice President 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
170
<PAGE>
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On this 27th day of June, 1998, before me, a notary public in and for said
State, personally appeared Daniel B. Kirby, personally known to me (or proved to
me on the basis of satisfactory evidence) to be the person who executed the
within instrument as Senior Vice President of AMRESCO Mortgage Capital, Inc.,
the general partner of AMRESCO Services, L.P., and acknowledged to me that such
corporation executed the within instrument pursuant to its bylaws 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
171
<PAGE>
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On this 27th day of March, 1998, before me, a notary public in and for said
State, personally appeared Shelly Rubin, personally known to me (or proved to me
on the basis of satisfactory evidence) to be the person who executed the within
instrument as Vice President on behalf of Lennar Partners, 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
172
<PAGE>
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On this 27th day of March, 1998, before me, a notary public in and for said
State, personally appeared Michael B. Evans, personally known to me (or proved
to me on the basis of satisfactory evidence) to be the person who executed the
within instrument as First Vice President 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
173
<PAGE>
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On this 27th day of March, 1998, before me, a notary public in and for said
State, personally appeared Irene Pazik, 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 Vice President 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
174
<PAGE>
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On this 26th day of March, 1998, before me, a notary public in and for said
State, personally appeared Robert C. Smolka, 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 Group Vice President 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
175
<PAGE>
- --------------------------------------------------------------------------------
MORGAN STANLEY CAPITAL I INC.,
as Depositor,
and
AMRESCO SERVICES, L.P.,
as Master Servicer,
and
LENNAR PARTNERS, INC.,
as Special Servicer,
and
LASALLE NATIONAL BANK,
as Trustee,
and
ABN AMRO BANK N.V.,
as Fiscal Agent,
------------------------------
EXHIBITS AND SCHEDULES TO
POOLING AND SERVICING AGREEMENT
Dated as of March 1, 1998
------------------------------
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 1998-HF1
- --------------------------------------------------------------------------------
<PAGE>
EXHIBITS
<TABLE>
<S> <C> <C>
Exhibit A-1 Form of Class A1 Certificate..............................................................A-1
Exhibit A-2 Form of Class A2 Certificate..............................................................A-2
Exhibit A-3 Form of Class B Certificate...............................................................A-3
Exhibit A-4 Form of Class C Certificate...............................................................A-4
Exhibit A-5 Form of Class D Certificate...............................................................A-5
Exhibit A-6 Form of Class E Certificate...............................................................A-6
Exhibit A-7 Form of Class F Certificate...............................................................A-7
Exhibit A-8 Form of Class G Certificate...............................................................A-8
Exhibit A-9 Form of Class H Certificate...............................................................A-9
Exhibit A-10 Form of Class J Certificate..............................................................A-10
Exhibit A-11 Form of Class K Certificate..............................................................A-11
Exhibit A-12 Form of Class L 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 X Certificate..............................................................A-16
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 Form of Purchaser's Letter..................................................................D
Exhibit E Form of Transferor Certificate for Transfers of REMIC Residual Certificate..................E
Exhibit F Form of Transfer Affidavit and Agreement for Transfers of REMIC Residual Certificates.......F
Exhibit G-1 Form of Monthly Certificateholder Report..................................................G-1
Exhibit G-2 Form of Specially Serviced Asset Report...................................................G-2
Exhibit H-1 Comparative Financial Status Report.......................................................H-1
Exhibit H-2 Delinquent Loan Status Report.............................................................H-2
Exhibit H-3 Historical Loan Modification Report.......................................................H-3
Exhibit H-4 Historical Loss Estimate Report...........................................................H-4
Exhibit H-5 REO Status Report.........................................................................H-5
Exhibit H-6 Watch List ...............................................................................H-6
Exhibit H-7 Operating Statement Analysis..............................................................H-7
Exhibit H-8 NOI Adjustment Worksheet .................................................................H-8
Exhibit H-9 CSSA Reports .............................................................................H-9
Exhibit H-10 CSSA Reports ............................................................................H-10
Exhibit H-11 CSSA Reports ............................................................................H-11
SCHEDULES
Schedule I MSMC Loan Schedule..........................................................................I
Schedule II Heller Loan Schedule.......................................................................II
</TABLE>
<PAGE>
EXHIBIT A-1
[FORM OF CLASS A1 CERTIFICATE]
THIS CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN THE
DEPOSITOR, EITHER UNDERWRITER, THE TRUSTEE, THE FISCAL AGENT, THE MASTER
SERVICER, THE SPECIAL SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL
NOT BE INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
NOTWITHSTANDING THE ABOVE, IF THE TRANSFEREE OF THIS CERTIFICATE IS AN EMPLOYEE
BENEFIT PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED, OR SECTION 4975 OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED, OR ANY PERSON ACTING ON BEHALF OF ANY
SUCH PLAN OR USING THE ASSETS OF SUCH PLAN TO ACQUIRE OR HOLD THIS CERTIFICATE,
SUCH PLAN OR SUCH PERSON MUST BE AN "ACCREDITED INVESTOR" WITHIN THE MEANING OF
RULE 501(A)(1), (2), (3) OR (7) OF REGULATION D OF THE UNITED STATES SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT").
THE PORTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THE CERTIFICATES EVIDENCED
BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS A1 CERTIFICATE. ACCORDINGLY, THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS
CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE PRINCIPAL BALANCE BY INQUIRY
OF THE TRUSTEE.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON 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-1-1
<PAGE>
MORGAN STANLEY CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1998-HF1
INITIAL PASS-THROUGH RATE: 6.19% CERTIFICATE PRINCIPAL BALANCE OF
THIS CLASS A1 CERTIFICATE AS OF
THE CLOSING DATE $224,800,000
DATE OF POOLING & SERVICING
AGREEMENT: AS OF MARCH 1, 1998 MASTER SERVICER: AMRESCO SERVICES, L.P.
CUT-OFF DATE: MARCH 1, 1998 INITIAL SPECIAL SERVICER:
LENNAR PARTNERS, INC.
CLOSING DATE: MARCH 27, 1998 TRUSTEE: LASALLE NATIONAL BANK
FIRST DISTRIBUTION DATE:
APRIL 15, 1998 FISCAL AGENT: ABN AMRO BANK N.V.
AGGREGATE CERTIFICATE PRINCIPAL CUSIP NO. 61745MFF5
BALANCE OF THE CLASS A1 CERTIFICATE
AS OF THE CLOSING DATE: $224,800,000 NO. 1
CLASS A1 CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
MORGAN STANLEY CAPITAL I INC.
THIS CERTIFIES THAT _________________ is the registered owner of the interest
evidenced by this Certificate in the Class A1 Certificates issued by the Trust
created pursuant to the Pooling and Servicing Agreement, dated as specified
above (the "Pooling and Servicing Agreement"), among Morgan Stanley Capital I
Inc. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Master
Servicer, the Special Servicer and the Fiscal Agent, a summary of certain of the
pertinent provisions of which is set forth hereafter. The Trust consists
primarily of the Mortgage Loans, such amounts as shall from time to time be held
in the Collection Account, the Distribution Account, the Insurance Policies and
any REO Properties. To the extent not defined herein, the capitalized terms used
herein have the meanings assigned in the Pooling and Servicing Agreement.
The Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Principal Balance of this
Certificate specified on the face hereof by the aggregate initial Certificate
Principal Balance of the Class A1 Certificates. The Certificates are designated
as the Morgan Stanley Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 1998-HF1 and are issued in sixteen Classes as specifically
set forth in the Pooling and Servicing Agreement. The Certificates will evidence
in the aggregate 100% of the beneficial ownership of the Trust.
A-1-2
<PAGE>
This Certificate does not purport to summarize the Pooling and Servicing
Agreement and reference is made to the Pooling and Servicing Agreement for
information with respect to the interests, rights, benefits, obligations,
proceeds, and duties evidenced hereby and the rights, duties and obligations of
the Trustee. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will be made
out of the Available Distribution Amount, to the extent and subject to the
limitations set forth in the Pooling and Servicing Agreement, on the 15th day of
each month or, if such 15th day is not a Business Day, the next succeeding
Business Day (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"). All sums
distributable on this Certificate are payable in the coin or currency of the
United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at a Pass-Through Rate
calculated as specified in the Pooling and Servicing Agreement on the
Certificate Principal Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by the
Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
Realized Losses and interest shortfalls on the Mortgage Loans shall be
allocated on the applicable Distribution Date to Certificateholders in the
manner set forth in the Pooling and Servicing Agreement. All Realized Losses and
interest shortfalls on the Mortgage Loans allocated to any Class of Certificates
will be allocated pro rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain collections and
recoveries respecting the Mortgage Loans, all as more specifically set forth in
the Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Collection Account shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust.
All distributions under the Pooling and Servicing Agreement to a nominee of
The Depository Trust Company ("DTC") will be made by or on behalf of the Trustee
by wire transfer in immediately available funds to an account specified in the
request of such Certificateholder. All distributions under the Pooling and
Servicing Agreement to Certificateholders will be made by wire transfer in
immediately available funds to the account specified by the Certificateholder,
at a bank or other entity having appropriate facilities therefor, if such
Certificateholder will have provided the Trustee with wiring instructions no
more than five business days after the related Record Date, or otherwise by
check mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
A-1-3
<PAGE>
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the aggregate Certificate Principal Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. 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 the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
limited circumstances, without the consent of the Holders of any of the
Certificates.
As provided in the Pooling and Servicing 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 Corporate Trust Office of the Trustee, duly endorsed by, or
accompanied by an assignment in the form below or other written instrument of
transfer in form satisfactory to the Certificate Registrar duly executed by the
Holder hereof or such Holder's attorney duly authorized in writing, and
thereupon one or more new Certificates of the same Class in authorized
denominations will be issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the Class A
Certificates will initially be issued in denominations of $5,000 initial
Certificate Principal Balance and in any whole dollar denomination in excess
thereof. The Class X, Class B, Class C, Class D and Class E Certificates will
initially be issued in denominations of $50,000 initial Certificate Principal
Balance or Certificate Notional Amount, as applicable, and in any whole dollar
denomination in excess thereof. The Class F, Class G, Class H, Class J, Class K
and Class L Certificates will initially be issued in denominations of $100,000
initial Certificate Principal Balance or Certificate Notional Amount, as
applicable, and in any whole dollar denomination in excess thereof. Each Class
of Certificates other than the Residual Certificates will be represented by one
or more Certificates registered in the name of Cede & Co., as nominee of the
DTC. No Certificate Owner will be entitled to receive a Definitive Certificate
representing such interest, except under the limited circumstances described in
the Pooling and Servicing Agreement. The Residual Certificates will be issued in
fully registered, certificated form in minimum percentage interests of 10% and
in multiples of 10% in excess thereof.
As provided in the Pooling and Servicing Agreement and subject to certain
limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Trustee may require payment of a
sum sufficient to cover any tax or other governmental charge that may be imposed
in connection with any transfer or exchange of Certificates.
The Depositor, the Trustee, the Fiscal Agent, the Master Servicer, the
Special Servicer and the Certificate Registrar and any of their agents may treat
the Person in whose name this Certificate is registered as the owner hereof for
all purposes, and neither the Depositor, the Trustee, the Fiscal Agent, the
Master Servicer, the Special Servicer, the Certificate Registrar nor any such
agents shall be affected by notice to the contrary.
The obligations and responsibilities of the Trustee created hereby (other
than the obligation of the Trustee to make payments to the Certificateholders as
set forth in Section 10.2 of the Pooling and Servicing Agreement and other than
the obligations in the nature of information or tax reporting) shall terminate
on the earliest of (i) the later of (A) the final payment or other liquidation
of the last Mortgage Loan remaining in the Trust and (B) the disposition of all
REO Property or (ii) the sale of the property held by the Trust in accordance
with Section 10.1(b) of the Pooling and Servicing Agreement; provided that in no
event shall the Trust continue beyond the expiration of 21 years from the death
of the last survivor of the descendants of Joseph P. Kennedy, the late
Ambassador of the United States to the Court of St. James, living on the date
hereof. The parties designated in the Pooling and Servicing Agreement may
exercise their option to purchase the Mortgage Loans and any other property
remaining in the Trust and cause the termination of the Trust in accordance with
the
A-1-4
<PAGE>
requirements set forth in the Pooling and Servicing Agreement. Upon termination
of the Trust and payment of the Certificates and of all administrative expenses
associated with the Trust, any remaining assets of the Trust shall be
distributed to the holders of the Class R-I Certificates.
The Trustee has executed this Certificate on behalf of the Trust as Trustee
under the Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE CONSTRUED
IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK WITHOUT
REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
A-1-5
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed under this official seal.
LASALLE NATIONAL BANK,
as Trustee
By: ________________________________
AUTHORIZED OFFICER
Dated:
A-1-6
<PAGE>
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS A1 CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE NATIONAL BANK,
as Authenticating Agent
BY:_________________________________
AUTHORIZED SIGNATORY
A-1-7
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT . . . .Custodian
TEN ENT - as tenants by the (Cust)
entireties Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship
and not as tenants in Act.......................
common (State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto
- --------------------------------------------------------------------------------
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
- ----------------------------------------
| |
- ----------------------------------------
--------------------------------------
- --------------------------------------------------------------------------------
Please print or typewrite name and address of assignee
- --------------------------------------------------------------------------------
the within Certificate and does hereby or irrevocably constitute and appoint
- --------------------------------------------------------------------------------
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:_______________________________ _______________________________________
NOTICE: The signature to this
assignment must correspond with the
name as written upon the face of this
Certificate in every particular without
alteration or enlargement or any change
whatever.
- -------------------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by a
commercial bank or trust company or by a
member firm of the New York Stock
Exchange or another national securities
exchange. Notarized or witnessed
signatures are not acceptable.
A-1-8
<PAGE>
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to ____________ for the account of _____________________________
_________________________________________ account number _______________________
or, if mailed by check, to __________________________. Statements should be
mailed to ______________________. This information is provided by assignee named
above, or ____________________________, as its agent.
A-1-9
<PAGE>
EXHIBIT A-2
[FORM OF CLASS A2 CERTIFICATE]
THIS CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN THE
DEPOSITOR, EITHER UNDERWRITER, THE TRUSTEE, THE FISCAL AGENT, THE MASTER
SERVICER, THE SPECIAL SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL
NOT BE INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
NOTWITHSTANDING THE ABOVE, IF THE TRANSFEREE OF THIS CERTIFICATE IS AN EMPLOYEE
BENEFIT PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED, OR SECTION 4975 OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED, OR ANY PERSON ACTING ON BEHALF OF ANY
SUCH PLAN OR USING THE ASSETS OF SUCH PLAN TO ACQUIRE OR HOLD THIS CERTIFICATE,
SUCH PLAN OR SUCH PERSON MUST BE AN "ACCREDITED INVESTOR" WITHIN THE MEANING OF
RULE 501(A)(1), (2), (3) OR (7) OF REGULATION D OF THE UNITED STATES SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT").
THE PORTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THE CERTIFICATES EVIDENCED
BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS A2 CERTIFICATE. ACCORDINGLY, THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS
CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE PRINCIPAL BALANCE BY INQUIRY
OF THE TRUSTEE.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON 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-2-1
<PAGE>
MORGAN STANLEY CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1998-HF1
INITIAL PASS-THROUGH RATE: 6.52% CERTIFICATE PRINCIPAL BALANCE OF THIS
CLASS A2 CERTIFICATE AS OF THE CLOSING
DATE $696,258,000
DATE OF POOLING & SERVICING MASTER SERVICER: AMRESCO SERVICES, L.P.
AGREEMENT: AS OF MARCH 1, 1998
CUT-OFF DATE: MARCH 1, 1998 INITIAL SPECIAL SERVICER: LENNAR
PARTNERS, INC.
CLOSING DATE: MARCH 27, 1998 TRUSTEE: LASALLE NATIONAL BANK
FIRST DISTRIBUTION DATE: FISCAL AGENT: ABN AMRO BANK N.V.
APRIL 15, 1998
AGGREGATE CERTIFICATE PRINCIPAL CUSIP NO. 61745MFG3
BALANCE OF THE CLASS A2 CERTIFICATE
AS OF THE CLOSING DATE: $696,258,000 NO. 1
CLASS A2 CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
MORGAN STANLEY CAPITAL I INC.
THIS CERTIFIES THAT _________________ is the registered owner of the interest
evidenced by this Certificate in the Class A2 Certificates issued by the Trust
created pursuant to the Pooling and Servicing Agreement, dated as specified
above (the "Pooling and Servicing Agreement"), among Morgan Stanley Capital I
Inc. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Master
Servicer, the Special Servicer and the Fiscal Agent, a summary of certain of the
pertinent provisions of which is set forth hereafter. The Trust consists
primarily of the Mortgage Loans, such amounts as shall from time to time be held
in the Collection Account, the Distribution Account, the Insurance Policies and
any REO Properties. To the extent not defined herein, the capitalized terms used
herein have the meanings assigned in the Pooling and Servicing Agreement.
The Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Principal Balance of this
Certificate specified on the face hereof by the aggregate initial Certificate
Principal Balance of the Class A2 Certificates. The Certificates are designated
as the Morgan Stanley Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 1998-HF1 and are issued in sixteen Classes as specifically
set forth in the Pooling and Servicing Agreement. The Certificates will evidence
in the aggregate 100% of the beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and Servicing
Agreement and reference is made to the Pooling and Servicing Agreement for
information with respect to the interests, rights, benefits,
A-2-2
<PAGE>
obligations, proceeds, and duties evidenced hereby and the rights, duties and
obligations of the Trustee. This Certificate is issued under and is subject to
the terms, provisions and conditions of the Pooling and Servicing Agreement, to
which Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will be made
out of the Available Distribution Amount, to the extent and subject to the
limitations set forth in the Pooling and Servicing Agreement, on the 15th day of
each month or, if such 15th day is not a Business Day, the next succeeding
Business Day (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"). All sums
distributable on this Certificate are payable in the coin or currency of the
United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at a Pass-Through Rate
calculated as specified in the Pooling and Servicing Agreement on the
Certificate Principal Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by the
Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
Realized Losses and interest shortfalls on the Mortgage Loans shall be
allocated on the applicable Distribution Date to Certificateholders in the
manner set forth in the Pooling and Servicing Agreement. All Realized Losses and
interest shortfalls on the Mortgage Loans allocated to any Class of Certificates
will be allocated pro rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain collections and
recoveries respecting the Mortgage Loans, all as more specifically set forth in
the Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Collection Account shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust.
All distributions under the Pooling and Servicing Agreement to a nominee of
The Depository Trust Company ("DTC") will be made by or on behalf of the Trustee
by wire transfer in immediately available funds to an account specified in the
request of such Certificateholder. All distributions under the Pooling and
Servicing Agreement to Certificateholders will be made by wire transfer in
immediately available funds to the account specified by the Certificateholder,
at a bank or other entity having appropriate facilities therefor, if such
Certificateholder will have provided the Trustee with wiring instructions no
more than five business days after the related Record Date, or otherwise by
check mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of
A-2-3
<PAGE>
the aggregate Certificate Principal Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. 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 the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
limited circumstances, without the consent of the Holders of any of the
Certificates.
As provided in the Pooling and Servicing 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 Corporate Trust Office of the Trustee, duly endorsed by, or
accompanied by an assignment in the form below or other written instrument of
transfer in form satisfactory to the Certificate Registrar duly executed by the
Holder hereof or such Holder's attorney duly authorized in writing, and
thereupon one or more new Certificates of the same Class in authorized
denominations will be issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the Class A
Certificates will initially be issued in denominations of $5,000 initial
Certificate Principal Balance and in any whole dollar denomination in excess
thereof. The Class X, Class B, Class C, Class D and Class E Certificates will
initially be issued in denominations of $50,000 initial Certificate Principal
Balance or Certificate Notional Amount, as applicable, and in any whole dollar
denomination in excess thereof. The Class F, Class G, Class H, Class J, Class K
and Class L Certificates will initially be issued in denominations of $100,000
initial Certificate Principal Balance or Certificate Notional Amount, as
applicable, and in any whole dollar denomination in excess thereof. Each Class
of Certificates other than the Residual Certificates will be represented by one
or more Certificates registered in the name of Cede & Co., as nominee of the
DTC. No Certificate Owner will be entitled to receive a Definitive Certificate
representing such interest, except under the limited circumstances described in
the Pooling and Servicing Agreement. The Residual Certificates will be issued in
fully registered, certificated form in minimum percentage interests of 10% and
in multiples of 10% in excess thereof.
As provided in the Pooling and Servicing Agreement and subject to certain
limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Trustee may require payment of a
sum sufficient to cover any tax or other governmental charge that may be imposed
in connection with any transfer or exchange of Certificates.
The Depositor, the Trustee, the Fiscal Agent, the Master Servicer, the
Special Servicer and the Certificate Registrar and any of their agents may treat
the Person in whose name this Certificate is registered as the owner hereof for
all purposes, and neither the Depositor, the Trustee, the Fiscal Agent, the
Master Servicer, the Special Servicer, the Certificate Registrar nor any such
agents shall be affected by notice to the contrary.
The obligations and responsibilities of the Trustee created hereby (other
than the obligation of the Trustee to make payments to the Certificateholders as
set forth in Section 10.2 of the Pooling and Servicing Agreement and other than
the obligations in the nature of information or tax reporting) shall terminate
on the earliest of (i) the later of (A) the final payment or other liquidation
of the last Mortgage Loan remaining in the Trust and (B) the disposition of all
REO Property or (ii) the sale of the property held by the Trust in accordance
with Section 10.1(b) of the Pooling and Servicing Agreement; provided that in no
event shall the Trust continue beyond the expiration of 21 years from the death
of the last survivor of the descendants of Joseph P. Kennedy, the late
Ambassador of the United States to the Court of St. James, living on the date
hereof. The parties designated in the Pooling and Servicing Agreement may
exercise their option to purchase the Mortgage Loans and any other property
remaining in the Trust and cause the termination of the Trust in accordance with
the requirements set forth in the Pooling and Servicing Agreement. Upon
termination of the Trust and payment of the Certificates and of all
administrative expenses associated with the Trust, any remaining assets of the
Trust shall be distributed to the holders of the Class R-I Certificates.
A-2-4
<PAGE>
The Trustee has executed this Certificate on behalf of the Trust as Trustee
under the Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE CONSTRUED
IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK WITHOUT
REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
A-2-5
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed under this official seal.
LASALLE NATIONAL BANK,
as Trustee
By:_________________________________
AUTHORIZED OFFICER
Dated:
A-2-6
<PAGE>
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS A2 CERTIFICATES REFERRED TO IN THE WITHIN-
MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE NATIONAL BANK,
as Authenticating Agent
BY:_________________________________
AUTHORIZED SIGNATORY
A-2-7
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT . . . .Custodian
TEN ENT - as tenants by the (Cust)
entireties Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship
and not as tenants in Act.......................
common (State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto
- --------------------------------------------------------------------------------
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
- ----------------------------------------
| |
- ----------------------------------------
--------------------------------------
- --------------------------------------------------------------------------------
Please print or typewrite name and address of assignee
- --------------------------------------------------------------------------------
the within Certificate and does hereby or irrevocably constitute and appoint
- --------------------------------------------------------------------------------
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:_______________________________ _______________________________________
NOTICE: The signature to this
assignment must correspond with the
name as written upon the face of this
Certificate in every particular without
alteration or enlargement or any change
whatever.
- -------------------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by a
commercial bank or trust company or by a
member firm of the New York Stock
Exchange or another national securities
exchange. Notarized or witnessed
signatures are not acceptable.
A-2-8
<PAGE>
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to ____________ for the account of _____________________________
_________________________________________ account number _____________________
or, if mailed by check, to __________________________. Statements should be
mailed to ______________________. This information is provided by assignee named
above, or ____________________________, as its agent.
A-2-9
<PAGE>
EXHIBIT A-3
[FORM OF CLASS B CERTIFICATE]
THIS CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN THE
DEPOSITOR, EITHER UNDERWRITER, THE TRUSTEE, THE FISCAL AGENT, THE MASTER
SERVICER, THE SPECIAL SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL
NOT BE INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
NOTWITHSTANDING THE ABOVE, THIS CERTIFICATE MAY NOT BE SOLD, PLEDGED, OR
OTHERWISE TRANSFERRED TO ANY PERSON THAT IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO
THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED, OR ANY PERSON ACTING ON BEHALF OF ANY SUCH
PLAN OR USING THE ASSETS OF SUCH PLAN TO ACQUIRE THIS CERTIFICATE, EXCEPT FOR AN
INSURANCE COMPANY INVESTING SOLELY ASSETS OF ITS GENERAL ACCOUNT, WHICH SHALL BE
DEEMED TO HAVE REPRESENTED AND WARRANTED THAT THE PURCHASE AND OWNERSHIP OF THIS
CERTIFICATE WILL NOT RESULT IN A NON-EXEMPT PROHIBITED TRANSACTION UNDER ERISA
AND SECTION 4975 OF THE CODE.
THIS CLASS B CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE PORTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THE CERTIFICATES EVIDENCED
BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS B CERTIFICATE. ACCORDINGLY, THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS
CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE PRINCIPAL BALANCE BY INQUIRY
OF THE TRUSTEE.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON 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>
MORGAN STANLEY CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1998-HF1
INITIAL PASS-THROUGH RATE: 6.58% CERTIFICATE PRINCIPAL BALANCE OF THIS
CLASS B CERTIFICATE AS OF THE CLOSING
DATE $67,395,000
DATE OF POOLING & SERVICING MASTER SERVICER: AMRESCO SERVICES, L.P.
AGREEMENT: AS OF MARCH 1, 1998
CUT-OFF DATE: MARCH 1, 1998 INITIAL SPECIAL SERVICER: LENNAR
PARTNERS, INC.
CLOSING DATE: MARCH 27, 1998 TRUSTEE: LASALLE NATIONAL BANK
FIRST DISTRIBUTION DATE: FISCAL AGENT: ABN AMRO BANK N.V.
APRIL 15, 1998
AGGREGATE CERTIFICATE PRINCIPAL CUSIP NO. 61745MFJ7
BALANCE OF THE CLASS B CERTIFICATE
AS OF THE CLOSING DATE: $67,395,000 NO. 1
CLASS B CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
MORGAN STANLEY CAPITAL I INC.
THIS CERTIFIES THAT _________________ is the registered owner of the interest
evidenced by this Certificate in the Class B Certificates issued by the Trust
created pursuant to the Pooling and Servicing Agreement, dated as specified
above (the "Pooling and Servicing Agreement"), among Morgan Stanley Capital I
Inc. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Master
Servicer, the Special Servicer and the Fiscal Agent, a summary of certain of the
pertinent provisions of which is set forth hereafter. The Trust consists
primarily of the Mortgage Loans, such amounts as shall from time to time be held
in the Collection Account, the Distribution Account, the Insurance Policies and
any REO Properties. To the extent not defined herein, the capitalized terms used
herein have the meanings assigned in the Pooling and Servicing Agreement.
The Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Principal Balance of this
Certificate specified on the face hereof by the aggregate initial Certificate
Principal Balance of the Class B Certificates. The Certificates are designated
as the Morgan Stanley Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 1998-HF1 and are issued in sixteen Classes as specifically
set forth in the Pooling and Servicing Agreement. The Certificates will evidence
in the aggregate 100% of the beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and Servicing
Agreement and reference is made to the Pooling and Servicing Agreement for
information with respect to the interests, rights, benefits, obligations,
proceeds, and duties evidenced hereby and the rights, duties and obligations of
the Trustee. This
A-3-2
<PAGE>
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will be made
out of the Available Distribution Amount, to the extent and subject to the
limitations set forth in the Pooling and Servicing Agreement, on the 15th day of
each month or, if such 15th day is not a Business Day, the next succeeding
Business Day (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"). All sums
distributable on this Certificate are payable in the coin or currency of the
United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at a Pass-Through Rate
calculated as specified in the Pooling and Servicing Agreement on the
Certificate Principal Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by the
Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
Realized Losses and interest shortfalls on the Mortgage Loans shall be
allocated on the applicable Distribution Date to Certificateholders in the
manner set forth in the Pooling and Servicing Agreement. All Realized Losses and
interest shortfalls on the Mortgage Loans allocated to any Class of Certificates
will be allocated pro rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain collections and
recoveries respecting the Mortgage Loans, all as more specifically set forth in
the Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Collection Account shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust.
All distributions under the Pooling and Servicing Agreement to a nominee of
The Depository Trust Company ("DTC") will be made by or on behalf of the Trustee
by wire transfer in immediately available funds to an account specified in the
request of such Certificateholder. All distributions under the Pooling and
Servicing Agreement to Certificateholders will be made by wire transfer in
immediately available funds to the account specified by the Certificateholder,
at a bank or other entity having appropriate facilities therefor, if such
Certificateholder will have provided the Trustee with wiring instructions no
more than five business days after the related Record Date, or otherwise by
check mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the aggregate Certificate Principal Balance of the Certificates then
outstanding, as specified in the Pooling and
A-3-3
<PAGE>
Servicing Agreement. 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 the Certificate. The Pooling and Servicing Agreement also permits the
amendment thereof, in certain limited circumstances, without the consent of the
Holders of any of the Certificates.
As provided in the Pooling and Servicing 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 Corporate Trust Office of the Trustee, duly endorsed by, or
accompanied by an assignment in the form below or other written instrument of
transfer in form satisfactory to the Certificate Registrar duly executed by the
Holder hereof or such Holder's attorney duly authorized in writing, and
thereupon one or more new Certificates of the same Class in authorized
denominations will be issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the Class A
Certificates will initially be issued in denominations of $5,000 initial
Certificate Principal Balance and in any whole dollar denomination in excess
thereof. The Class X, Class B, Class C, Class D and Class E Certificates will
initially be issued in denominations of $50,000 initial Certificate Principal
Balance or Certificate Notional Amount, as applicable, and in any whole dollar
denomination in excess thereof. The Class F, Class G, Class H, Class J, Class K
and Class L Certificates will initially be issued in denominations of $100,000
initial Certificate Principal Balance or Certificate Notional Amount, as
applicable, and in any whole dollar denomination in excess thereof. Each Class
of Certificates other than the Residual Certificates will be represented by one
or more Certificates registered in the name of Cede & Co., as nominee of the
DTC. No Certificate Owner will be entitled to receive a Definitive Certificate
representing such interest, except under the limited circumstances described in
the Pooling and Servicing Agreement. The Residual Certificates will be issued in
fully registered, certificated form in minimum percentage interests of 10% and
in multiples of 10% in excess thereof.
As provided in the Pooling and Servicing Agreement and subject to certain
limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Trustee may require payment of a
sum sufficient to cover any tax or other governmental charge that may be imposed
in connection with any transfer or exchange of Certificates.
The Depositor, the Trustee, the Fiscal Agent, the Master Servicer, the
Special Servicer and the Certificate Registrar and any of their agents may treat
the Person in whose name this Certificate is registered as the owner hereof for
all purposes, and neither the Depositor, the Trustee, the Fiscal Agent, the
Master Servicer, the Special Servicer, the Certificate Registrar nor any such
agents shall be affected by notice to the contrary.
The obligations and responsibilities of the Trustee created hereby (other
than the obligation of the Trustee to make payments to the Certificateholders as
set forth in Section 10.2 of the Pooling and Servicing Agreement and other than
the obligations in the nature of information or tax reporting) shall terminate
on the earliest of (i) the later of (A) the final payment or other liquidation
of the last Mortgage Loan remaining in the Trust and (B) the disposition of all
REO Property or (ii) the sale of the property held by the Trust in accordance
with Section 10.1(b) of the Pooling and Servicing Agreement; provided that in no
event shall the Trust continue beyond the expiration of 21 years from the death
of the last survivor of the descendants of Joseph P. Kennedy, the late
Ambassador of the United States to the Court of St. James, living on the date
hereof. The parties designated in the Pooling and Servicing Agreement may
exercise their option to purchase the Mortgage Loans and any other property
remaining in the Trust and cause the termination of the Trust in accordance with
the requirements set forth in the Pooling and Servicing Agreement. Upon
termination of the Trust and payment of the Certificates and of all
administrative expenses associated with the Trust, any remaining assets of the
Trust shall be distributed to the holders of the Class R-I Certificates.
A-3-4
<PAGE>
The Trustee has executed this Certificate on behalf of the Trust as Trustee
under the Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE CONSTRUED
IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK WITHOUT
REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
A-3-5
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed under this official seal.
LASALLE NATIONAL BANK,
as Trustee
By:
------------------------------
AUTHORIZED OFFICER
Dated:
A-3-6
<PAGE>
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS B CERTIFICATES REFERRED TO IN THE WITHIN-MENTIONED
POOLING AND SERVICING AGREEMENT.
LASALLE NATIONAL BANK,
as Authenticating Agent
BY:
-------------------------------
AUTHORIZED SIGNATORY
A-3-7
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT . . . .Custodian
TEN ENT - as tenants by the (Cust)
entireties Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship
and not as tenants in Act.......................
common (State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto
- --------------------------------------------------------------------------------
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
- ----------------------------------------
| |
- ----------------------------------------
--------------------------------------
- --------------------------------------------------------------------------------
Please print or typewrite name and address of assignee
- --------------------------------------------------------------------------------
the within Certificate and does hereby or irrevocably constitute and appoint
- --------------------------------------------------------------------------------
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:_______________________________ _______________________________________
NOTICE: The signature to this
assignment must correspond with the
name as written upon the face of this
Certificate in every particular without
alteration or enlargement or any change
whatever.
- -------------------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by a
commercial bank or trust company or by a
member firm of the New York Stock
Exchange or another national securities
exchange. Notarized or witnessed
signatures are not acceptable.
A-3-8
<PAGE>
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to ____________ for the account of ___________________________
account number _____________________ or, if mailed by check, to
__________________________. Statements should be mailed to ___________________.
This information is provided by assignee named above, or
____________________________, as its agent.
A-3-9
<PAGE>
EXHIBIT A-4
[FORM OF CLASS C CERTIFICATE]
THIS CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN THE
DEPOSITOR, EITHER UNDERWRITER, THE TRUSTEE, THE FISCAL AGENT, THE MASTER
SERVICER, THE SPECIAL SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL
NOT BE INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
NOTWITHSTANDING THE ABOVE, THIS CERTIFICATE MAY NOT BE SOLD, PLEDGED, OR
OTHERWISE TRANSFERRED TO ANY PERSON THAT IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO
THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED, OR ANY PERSON ACTING ON BEHALF OF ANY SUCH
PLAN OR USING THE ASSETS OF SUCH PLAN TO ACQUIRE THIS CERTIFICATE, EXCEPT FOR AN
INSURANCE COMPANY INVESTING SOLELY ASSETS OF ITS GENERAL ACCOUNT, WHICH SHALL BE
DEEMED TO HAVE REPRESENTED AND WARRANTED THAT THE PURCHASE AND OWNERSHIP OF THIS
CERTIFICATE WILL NOT RESULT IN A NON-EXEMPT PROHIBITED TRANSACTION UNDER ERISA
AND SECTION 4975 OF THE CODE.
THIS CLASS C CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE PORTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THE CERTIFICATES EVIDENCED
BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS C CERTIFICATE. ACCORDINGLY, THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS
CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE PRINCIPAL BALANCE BY INQUIRY
OF THE TRUSTEE.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON 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>
MORGAN STANLEY CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1998-HF1
INITIAL PASS-THROUGH RATE: 6.75% CERTIFICATE PRINCIPAL BALANCE OF THIS
CLASS C CERTIFICATE AS OF THE CLOSING
DATE $64,185,000
DATE OF POOLING & SERVICING MASTER SERVICER: AMRESCO SERVICES, L.P.
AGREEMENT: AS OF MARCH 1, 1998
CUT-OFF DATE: MARCH 1, 1998 INITIAL SPECIAL SERVICER: LENNAR
PARTNERS, INC.
CLOSING DATE: MARCH 27, 1998 TRUSTEE: LASALLE NATIONAL BANK
FIRST DISTRIBUTION DATE: FISCAL AGENT: ABN AMRO BANK N.V.
APRIL 15, 1998
AGGREGATE CERTIFICATE PRINCIPAL CUSIP NO. 61745MFK4
BALANCE OF THE CLASS C CERTIFICATE
AS OF THE CLOSING DATE: $64,185,000 NO. 1
CLASS C CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
MORGAN STANLEY CAPITAL I INC.
THIS CERTIFIES THAT _________________ is the registered owner of the interest
evidenced by this Certificate in the Class C Certificates issued by the Trust
created pursuant to the Pooling and Servicing Agreement, dated as specified
above (the "Pooling and Servicing Agreement"), among Morgan Stanley Capital I
Inc. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Master
Servicer, the Special Servicer and the Fiscal Agent, a summary of certain of the
pertinent provisions of which is set forth hereafter. The Trust consists
primarily of the Mortgage Loans, such amounts as shall from time to time be held
in the Collection Account, the Distribution Account, the Insurance Policies and
any REO Properties. To the extent not defined herein, the capitalized terms used
herein have the meanings assigned in the Pooling and Servicing Agreement.
The Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Principal Balance of this
Certificate specified on the face hereof by the aggregate initial Certificate
Principal Balance of the Class C Certificates. The Certificates are designated
as the Morgan Stanley Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 1998-HF1 and are issued in sixteen Classes as specifically
set forth in the Pooling and Servicing Agreement. The Certificates will evidence
in the aggregate 100% of the beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and Servicing
Agreement and reference is made to the Pooling and Servicing Agreement for
information with respect to the interests, rights, benefits,
A-4-2
<PAGE>
obligations, proceeds, and duties evidenced hereby and the rights, duties and
obligations of the Trustee. This Certificate is issued under and is subject to
the terms, provisions and conditions of the Pooling and Servicing Agreement, to
which Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will be made
out of the Available Distribution Amount, to the extent and subject to the
limitations set forth in the Pooling and Servicing Agreement, on the 15th day of
each month or, if such 15th day is not a Business Day, the next succeeding
Business Day (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"). All sums
distributable on this Certificate are payable in the coin or currency of the
United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at a Pass-Through Rate
calculated as specified in the Pooling and Servicing Agreement on the
Certificate Principal Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by the
Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
Realized Losses and interest shortfalls on the Mortgage Loans shall be
allocated on the applicable Distribution Date to Certificateholders in the
manner set forth in the Pooling and Servicing Agreement. All Realized Losses and
interest shortfalls on the Mortgage Loans allocated to any Class of Certificates
will be allocated pro rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain collections and
recoveries respecting the Mortgage Loans, all as more specifically set forth in
the Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Collection Account shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust.
All distributions under the Pooling and Servicing Agreement to a nominee of
The Depository Trust Company ("DTC") will be made by or on behalf of the Trustee
by wire transfer in immediately available funds to an account specified in the
request of such Certificateholder. All distributions under the Pooling and
Servicing Agreement to Certificateholders will be made by wire transfer in
immediately available funds to the account specified by the Certificateholder,
at a bank or other entity having appropriate facilities therefor, if such
Certificateholder will have provided the Trustee with wiring instructions no
more than five business days after the related Record Date, or otherwise by
check mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of
A-4-3
<PAGE>
the aggregate Certificate Principal Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. 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 the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
limited circumstances, without the consent of the Holders of any of the
Certificates.
As provided in the Pooling and Servicing 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 Corporate Trust Office of the Trustee, duly endorsed by, or
accompanied by an assignment in the form below or other written instrument of
transfer in form satisfactory to the Certificate Registrar duly executed by the
Holder hereof or such Holder's attorney duly authorized in writing, and
thereupon one or more new Certificates of the same Class in authorized
denominations will be issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the Class A
Certificates will initially be issued in denominations of $5,000 initial
Certificate Principal Balance and in any whole dollar denomination in excess
thereof. The Class X, Class B, Class C, Class D and Class E Certificates will
initially be issued in denominations of $50,000 initial Certificate Principal
Balance or Certificate Notional Amount, as applicable, and in any whole dollar
denomination in excess thereof. The Class F, Class G, Class H, Class J, Class K
and Class L Certificates will initially be issued in denominations of $100,000
initial Certificate Principal Balance or Certificate Notional Amount, as
applicable, and in any whole dollar denomination in excess thereof. Each Class
of Certificates other than the Residual Certificates will be represented by one
or more Certificates registered in the name of Cede & Co., as nominee of the
DTC. No Certificate Owner will be entitled to receive a Definitive Certificate
representing such interest, except under the limited circumstances described in
the Pooling and Servicing Agreement. The Residual Certificates will be issued in
fully registered, certificated form in minimum percentage interests of 10% and
in multiples of 10% in excess thereof.
As provided in the Pooling and Servicing Agreement and subject to certain
limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Trustee may require payment of a
sum sufficient to cover any tax or other governmental charge that may be imposed
in connection with any transfer or exchange of Certificates.
The Depositor, the Trustee, the Fiscal Agent, the Master Servicer, the
Special Servicer and the Certificate Registrar and any of their agents may treat
the Person in whose name this Certificate is registered as the owner hereof for
all purposes, and neither the Depositor, the Trustee, the Fiscal Agent, the
Master Servicer, the Special Servicer, the Certificate Registrar nor any such
agents shall be affected by notice to the contrary.
The obligations and responsibilities of the Trustee created hereby (other
than the obligation of the Trustee to make payments to the Certificateholders as
set forth in Section 10.2 of the Pooling and Servicing Agreement and other than
the obligations in the nature of information or tax reporting) shall terminate
on the earliest of (i) the later of (A) the final payment or other liquidation
of the last Mortgage Loan remaining in the Trust and (B) the disposition of all
REO Property or (ii) the sale of the property held by the Trust in accordance
with Section 10.1(b) of the Pooling and Servicing Agreement; provided that in no
event shall the Trust continue beyond the expiration of 21 years from the death
of the last survivor of the descendants of Joseph P. Kennedy, the late
Ambassador of the United States to the Court of St. James, living on the date
hereof. The parties designated in the Pooling and Servicing Agreement may
exercise their option to purchase the Mortgage Loans and any other property
remaining in the Trust and cause the termination of the Trust in accordance with
the requirements set forth in the Pooling and Servicing Agreement. Upon
termination of the Trust and payment of the Certificates and of all
administrative expenses associated with the Trust, any remaining assets of the
Trust shall be distributed to the holders of the Class R-I Certificates.
A-4-4
<PAGE>
The Trustee has executed this Certificate on behalf of the Trust as Trustee
under the Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE CONSTRUED
IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK WITHOUT
REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
A-4-5
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed under this official seal.
LASALLE NATIONAL BANK,
as Trustee
By:
----------------------------
AUTHORIZED OFFICER
Dated:
A-4-6
<PAGE>
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS C CERTIFICATES REFERRED TO IN THE WITHIN-MENTIONED
POOLING AND SERVICING AGREEMENT.
LASALLE NATIONAL BANK,
as Authenticating Agent
BY:
----------------------------
AUTHORIZED SIGNATORY
A-4-7
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT . . . .Custodian
TEN ENT - as tenants by the (Cust)
entireties Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship
and not as tenants in Act.......................
common (State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto
- --------------------------------------------------------------------------------
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
- ----------------------------------------
| |
- ----------------------------------------
--------------------------------------
- --------------------------------------------------------------------------------
Please print or typewrite name and address of assignee
- --------------------------------------------------------------------------------
the within Certificate and does hereby or irrevocably constitute and appoint
- --------------------------------------------------------------------------------
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:_______________________________ _______________________________________
NOTICE: The signature to this
assignment must correspond with the
name as written upon the face of this
Certificate in every particular without
alteration or enlargement or any change
whatever.
- -------------------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by a
commercial bank or trust company or by a
member firm of the New York Stock
Exchange or another national securities
exchange. Notarized or witnessed
signatures are not acceptable.
A-4-8
<PAGE>
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to ____________ for the account of __________________________
account number _____________________ or, if mailed by check, to________________.
Statements should be mailed to ______________________. This information is
provided by assignee named above, or ____________________________, as its agent.
A-4-9
<PAGE>
EXHIBIT A-5
[FORM OF CLASS D CERTIFICATE]
THIS CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN THE
DEPOSITOR, EITHER UNDERWRITER, THE TRUSTEE, THE FISCAL AGENT, THE MASTER
SERVICER, THE SPECIAL SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL
NOT BE INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
NOTWITHSTANDING THE ABOVE, THIS CERTIFICATE MAY NOT BE SOLD, PLEDGED, OR
OTHERWISE TRANSFERRED TO ANY PERSON THAT IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO
THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED, OR ANY PERSON ACTING ON BEHALF OF ANY SUCH
PLAN OR USING THE ASSETS OF SUCH PLAN TO ACQUIRE THIS CERTIFICATE, EXCEPT FOR AN
INSURANCE COMPANY INVESTING SOLELY ASSETS OF ITS GENERAL ACCOUNT, WHICH SHALL BE
DEEMED TO HAVE REPRESENTED AND WARRANTED THAT THE PURCHASE AND OWNERSHIP OF THIS
CERTIFICATE WILL NOT RESULT IN A NON-EXEMPT PROHIBITED TRANSACTION UNDER ERISA
AND SECTION 4975 OF THE CODE.
THIS CLASS D CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE PORTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THE CERTIFICATES EVIDENCED
BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS D CERTIFICATE. ACCORDINGLY, THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS
CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE PRINCIPAL BALANCE BY INQUIRY
OF THE TRUSTEE.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON 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>
MORGAN STANLEY CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1998-HF1
INITIAL PASS-THROUGH RATE: 7.10% CERTIFICATE PRINCIPAL BALANCE OF THIS
CLASS D CERTIFICATE AS OF THE CLOSING
DATE $64,185,000
DATE OF POOLING & SERVICING MASTER SERVICER: AMRESCO SERVICES, L.P.
AGREEMENT: AS OF MARCH 1, 1998
CUT-OFF DATE: MARCH 1, 1998 INITIAL SPECIAL SERVICER: LENNAR
PARTNERS, INC.
CLOSING DATE: MARCH 27, 1998 TRUSTEE: LASALLE NATIONAL BANK
FIRST DISTRIBUTION DATE: FISCAL AGENT: ABN AMRO BANK N.V.
APRIL 15, 1998
AGGREGATE CERTIFICATE PRINCIPAL CUSIP NO. 61745MFL2
BALANCE OF THE CLASS D CERTIFICATE
AS OF THE CLOSING DATE: $64,185,000 NO. 1
CLASS D CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
MORGAN STANLEY CAPITAL I INC.
THIS CERTIFIES THAT _________________ is the registered owner of the interest
evidenced by this Certificate in the Class D Certificates issued by the Trust
created pursuant to the Pooling and Servicing Agreement, dated as specified
above (the "Pooling and Servicing Agreement"), among Morgan Stanley Capital I
Inc. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Master
Servicer, the Special Servicer and the Fiscal Agent, a summary of certain of the
pertinent provisions of which is set forth hereafter. The Trust consists
primarily of the Mortgage Loans, such amounts as shall from time to time be held
in the Collection Account, the Distribution Account, the Insurance Policies and
any REO Properties. To the extent not defined herein, the capitalized terms used
herein have the meanings assigned in the Pooling and Servicing Agreement.
The Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Principal Balance of this
Certificate specified on the face hereof by the aggregate initial Certificate
Principal Balance of the Class D Certificates. The Certificates are designated
as the Morgan Stanley Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 1998-HF1 and are issued in sixteen Classes as specifically
set forth in the Pooling and Servicing Agreement. The Certificates will evidence
in the aggregate 100% of the beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and Servicing
Agreement and reference is made to the Pooling and Servicing Agreement for
information with respect to the interests, rights, benefits,
A-5-2
<PAGE>
obligations, proceeds, and duties evidenced hereby and the rights, duties and
obligations of the Trustee. This Certificate is issued under and is subject to
the terms, provisions and conditions of the Pooling and Servicing Agreement, to
which Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will be made
out of the Available Distribution Amount, to the extent and subject to the
limitations set forth in the Pooling and Servicing Agreement, on the 15th day of
each month or, if such 15th day is not a Business Day, the next succeeding
Business Day (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"). All sums
distributable on this Certificate are payable in the coin or currency of the
United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at a Pass-Through Rate
calculated as specified in the Pooling and Servicing Agreement on the
Certificate Principal Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by the
Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
Realized Losses and interest shortfalls on the Mortgage Loans shall be
allocated on the applicable Distribution Date to Certificateholders in the
manner set forth in the Pooling and Servicing Agreement. All Realized Losses and
interest shortfalls on the Mortgage Loans allocated to any Class of Certificates
will be allocated pro rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain collections and
recoveries respecting the Mortgage Loans, all as more specifically set forth in
the Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Collection Account shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust.
All distributions under the Pooling and Servicing Agreement to a nominee of
The Depository Trust Company ("DTC") will be made by or on behalf of the Trustee
by wire transfer in immediately available funds to an account specified in the
request of such Certificateholder. All distributions under the Pooling and
Servicing Agreement to Certificateholders will be made by wire transfer in
immediately available funds to the account specified by the Certificateholder,
at a bank or other entity having appropriate facilities therefor, if such
Certificateholder will have provided the Trustee with wiring instructions no
more than five business days after the related Record Date, or otherwise by
check mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of
A-5-3
<PAGE>
the aggregate Certificate Principal Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. 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 the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
limited circumstances, without the consent of the Holders of any of the
Certificates.
As provided in the Pooling and Servicing 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 Corporate Trust Office of the Trustee, duly endorsed by, or
accompanied by an assignment in the form below or other written instrument of
transfer in form satisfactory to the Certificate Registrar duly executed by the
Holder hereof or such Holder's attorney duly authorized in writing, and
thereupon one or more new Certificates of the same Class in authorized
denominations will be issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the Class A
Certificates will initially be issued in denominations of $5,000 initial
Certificate Principal Balance and in any whole dollar denomination in excess
thereof. The Class X, Class B, Class C, Class D and Class E Certificates will
initially be issued in denominations of $50,000 initial Certificate Principal
Balance or Certificate Notional Amount, as applicable, and in any whole dollar
denomination in excess thereof. The Class F, Class G, Class H, Class J, Class K
and Class L Certificates will initially be issued in denominations of $100,000
initial Certificate Principal Balance or Certificate Notional Amount, as
applicable, and in any whole dollar denomination in excess thereof. Each Class
of Certificates other than the Residual Certificates will be represented by one
or more Certificates registered in the name of Cede & Co., as nominee of the
DTC. No Certificate Owner will be entitled to receive a Definitive Certificate
representing such interest, except under the limited circumstances described in
the Pooling and Servicing Agreement. The Residual Certificates will be issued in
fully registered, certificated form in minimum percentage interests of 10% and
in multiples of 10% in excess thereof.
As provided in the Pooling and Servicing Agreement and subject to certain
limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Trustee may require payment of a
sum sufficient to cover any tax or other governmental charge that may be imposed
in connection with any transfer or exchange of Certificates.
The Depositor, the Trustee, the Fiscal Agent, the Master Servicer, the
Special Servicer and the Certificate Registrar and any of their agents may treat
the Person in whose name this Certificate is registered as the owner hereof for
all purposes, and neither the Depositor, the Trustee, the Fiscal Agent, the
Master Servicer, the Special Servicer, the Certificate Registrar nor any such
agents shall be affected by notice to the contrary.
The obligations and responsibilities of the Trustee created hereby (other
than the obligation of the Trustee to make payments to the Certificateholders as
set forth in Section 10.2 of the Pooling and Servicing Agreement and other than
the obligations in the nature of information or tax reporting) shall terminate
on the earliest of (i) the later of (A) the final payment or other liquidation
of the last Mortgage Loan remaining in the Trust and (B) the disposition of all
REO Property or (ii) the sale of the property held by the Trust in accordance
with Section 10.1(b) of the Pooling and Servicing Agreement; provided that in no
event shall the Trust continue beyond the expiration of 21 years from the death
of the last survivor of the descendants of Joseph P. Kennedy, the late
Ambassador of the United States to the Court of St. James, living on the date
hereof. The parties designated in the Pooling and Servicing Agreement may
exercise their option to purchase the Mortgage Loans and any other property
remaining in the Trust and cause the termination of the Trust in accordance with
the requirements set forth in the Pooling and Servicing Agreement. Upon
termination of the Trust and payment of the Certificates and of all
administrative expenses associated with the Trust, any remaining assets of the
Trust shall be distributed to the holders of the Class R-I Certificates.
A-5-4
<PAGE>
The Trustee has executed this Certificate on behalf of the Trust as Trustee
under the Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE CONSTRUED
IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK WITHOUT
REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
A-5-5
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed under this official seal.
LASALLE NATIONAL BANK,
as Trustee
By:
----------------------------
AUTHORIZED OFFICER
Dated:
A-5-6
<PAGE>
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS D CERTIFICATES REFERRED TO IN THE WITHIN-MENTIONED
POOLING AND SERVICING AGREEMENT.
LASALLE NATIONAL BANK,
as Authenticating Agent
BY:
----------------------------
AUTHORIZED SIGNATORY
A-5-7
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT . . . .Custodian
TEN ENT - as tenants by the (Cust)
entireties Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship
and not as tenants in Act.......................
common (State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto
- --------------------------------------------------------------------------------
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
- ----------------------------------------
| |
- ----------------------------------------
--------------------------------------
- --------------------------------------------------------------------------------
Please print or typewrite name and address of assignee
- --------------------------------------------------------------------------------
the within Certificate and does hereby or irrevocably constitute and appoint
- --------------------------------------------------------------------------------
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:_______________________________ _______________________________________
NOTICE: The signature to this
assignment must correspond with the
name as written upon the face of this
Certificate in every particular without
alteration or enlargement or any change
whatever.
- -------------------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by a
commercial bank or trust company or by a
member firm of the New York Stock
Exchange or another national securities
exchange. Notarized or witnessed
signatures are not acceptable.
A-5-8
<PAGE>
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to ____________ for the account of____________________________
account number _____________________ or, if mailed by check, to _______________.
Statements should be mailed to ______________________. This information is
provided by assignee named above, or ____________________________, as its agent.
A-5-9
<PAGE>
EXHIBIT A-6
[FORM OF CLASS E CERTIFICATE]
THIS CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN THE
DEPOSITOR, EITHER UNDERWRITER, THE TRUSTEE, THE FISCAL AGENT, THE MASTER
SERVICER, THE SPECIAL SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL
NOT BE INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
NOTWITHSTANDING THE ABOVE, THIS CERTIFICATE MAY NOT BE SOLD, PLEDGED, OR
OTHERWISE TRANSFERRED TO ANY PERSON THAT IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO
THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED, OR ANY PERSON ACTING ON BEHALF OF ANY SUCH
PLAN OR USING THE ASSETS OF SUCH PLAN TO ACQUIRE THIS CERTIFICATE, EXCEPT FOR AN
INSURANCE COMPANY INVESTING SOLELY ASSETS OF ITS GENERAL ACCOUNT, WHICH SHALL BE
DEEMED TO HAVE REPRESENTED AND WARRANTED THAT THE PURCHASE AND OWNERSHIP OF THIS
CERTIFICATE WILL NOT RESULT IN A NON-EXEMPT PROHIBITED TRANSACTION UNDER ERISA
AND SECTION 4975 OF THE CODE.
THIS CLASS E CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE PORTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THE CERTIFICATES EVIDENCED
BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS E CERTIFICATE. ACCORDINGLY, THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS
CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE PRINCIPAL BALANCE BY INQUIRY
OF THE TRUSTEE.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON 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>
MORGAN STANLEY CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1998-HF1
INITIAL PASS-THROUGH RATE: 7.60% CERTIFICATE PRINCIPAL BALANCE OF THIS
CLASS E CERTIFICATE AS OF THE CLOSING
DATE $25,674,000
DATE OF POOLING & SERVICING MASTER SERVICER: AMRESCO SERVICES, L.P.
AGREEMENT: AS OF MARCH 1, 1998
CUT-OFF DATE: MARCH 1, 1998 INITIAL SPECIAL SERVICER:
LENNAR PARTNERS, INC.
CLOSING DATE: MARCH 27, 1998 TRUSTEE: LASALLE NATIONAL BANK
FIRST DISTRIBUTION DATE: FISCAL AGENT: ABN AMRO BANK N.V.
APRIL 15, 1998
AGGREGATE CERTIFICATE PRINCIPAL CUSIP NO. 61745MFM0
BALANCE OF THE CLASS E CERTIFICATE
AS OF THE CLOSING DATE: $25,674,000 NO. 1
CLASS E CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
MORGAN STANLEY CAPITAL I INC.
THIS CERTIFIES THAT _________________ is the registered owner of the interest
evidenced by this Certificate in the Class E Certificates issued by the Trust
created pursuant to the Pooling and Servicing Agreement, dated as specified
above (the "Pooling and Servicing Agreement"), among Morgan Stanley Capital I
Inc. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Master
Servicer, the Special Servicer and the Fiscal Agent, a summary of certain of the
pertinent provisions of which is set forth hereafter. The Trust consists
primarily of the Mortgage Loans, such amounts as shall from time to time be held
in the Collection Account, the Distribution Account, the Insurance Policies and
any REO Properties. To the extent not defined herein, the capitalized terms used
herein have the meanings assigned in the Pooling and Servicing Agreement.
The Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Principal Balance of this
Certificate specified on the face hereof by the aggregate initial Certificate
Principal Balance of the Class E Certificates. The Certificates are designated
as the Morgan Stanley Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 1998-HF1 and are issued in sixteen Classes as specifically
set forth in the Pooling and Servicing Agreement. The Certificates will evidence
in the aggregate 100% of the beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and Servicing
Agreement and reference is made to the Pooling and Servicing Agreement for
information with respect to the interests, rights, benefits,
A-6-2
<PAGE>
obligations, proceeds, and duties evidenced hereby and the rights, duties and
obligations of the Trustee. This Certificate is issued under and is subject to
the terms, provisions and conditions of the Pooling and Servicing Agreement, to
which Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will be made
out of the Available Distribution Amount, to the extent and subject to the
limitations set forth in the Pooling and Servicing Agreement, on the 15th day of
each month or, if such 15th day is not a Business Day, the next succeeding
Business Day (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"). All sums
distributable on this Certificate are payable in the coin or currency of the
United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at a Pass-Through Rate
calculated as specified in the Pooling and Servicing Agreement on the
Certificate Principal Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by the
Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
Realized Losses and interest shortfalls on the Mortgage Loans shall be
allocated on the applicable Distribution Date to Certificateholders in the
manner set forth in the Pooling and Servicing Agreement. All Realized Losses and
interest shortfalls on the Mortgage Loans allocated to any Class of Certificates
will be allocated pro rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain collections and
recoveries respecting the Mortgage Loans, all as more specifically set forth in
the Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Collection Account shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust.
All distributions under the Pooling and Servicing Agreement to a nominee of
The Depository Trust Company ("DTC") will be made by or on behalf of the Trustee
by wire transfer in immediately available funds to an account specified in the
request of such Certificateholder. All distributions under the Pooling and
Servicing Agreement to Certificateholders will be made by wire transfer in
immediately available funds to the account specified by the Certificateholder,
at a bank or other entity having appropriate facilities therefor, if such
Certificateholder will have provided the Trustee with wiring instructions no
more than five business days after the related Record Date, or otherwise by
check mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of
A-6-3
<PAGE>
the aggregate Certificate Principal Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. 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 the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
limited circumstances, without the consent of the Holders of any of the
Certificates.
As provided in the Pooling and Servicing 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 Corporate Trust Office of the Trustee, duly endorsed by, or
accompanied by an assignment in the form below or other written instrument of
transfer in form satisfactory to the Certificate Registrar duly executed by the
Holder hereof or such Holder's attorney duly authorized in writing, and
thereupon one or more new Certificates of the same Class in authorized
denominations will be issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the Class A
Certificates will initially be issued in denominations of $5,000 initial
Certificate Principal Balance and in any whole dollar denomination in excess
thereof. The Class X, Class B, Class C, Class D and Class E Certificates will
initially be issued in denominations of $50,000 initial Certificate Principal
Balance or Certificate Notional Amount, as applicable, and in any whole dollar
denomination in excess thereof. The Class F, Class G, Class H, Class J, Class K
and Class L Certificates will initially be issued in denominations of $100,000
initial Certificate Principal Balance or Certificate Notional Amount, as
applicable, and in any whole dollar denomination in excess thereof. Each Class
of Certificates other than the Residual Certificates will be represented by one
or more Certificates registered in the name of Cede & Co., as nominee of the
DTC. No Certificate Owner will be entitled to receive a Definitive Certificate
representing such interest, except under the limited circumstances described in
the Pooling and Servicing Agreement. The Residual Certificates will be issued in
fully registered, certificated form in minimum percentage interests of 10% and
in multiples of 10% in excess thereof.
As provided in the Pooling and Servicing Agreement and subject to certain
limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Trustee may require payment of a
sum sufficient to cover any tax or other governmental charge that may be imposed
in connection with any transfer or exchange of Certificates.
The Depositor, the Trustee, the Fiscal Agent, the Master Servicer,
the Special Servicer and the Certificate Registrar and any of their agents may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Fiscal
Agent, the Master Servicer, the Special Servicer, the Certificate Registrar nor
any such agents shall be affected by notice to the contrary.
The obligations and responsibilities of the Trustee created hereby (other
than the obligation of the Trustee to make payments to the Certificateholders as
set forth in Section 10.2 of the Pooling and Servicing Agreement and other than
the obligations in the nature of information or tax reporting) shall terminate
on the earliest of (i) the later of (A) the final payment or other liquidation
of the last Mortgage Loan remaining in the Trust and (B) the disposition of all
REO Property or (ii) the sale of the property held by the Trust in accordance
with Section 10.1(b) of the Pooling and Servicing Agreement; provided that in no
event shall the Trust continue beyond the expiration of 21 years from the death
of the last survivor of the descendants of Joseph P. Kennedy, the late
Ambassador of the United States to the Court of St. James, living on the date
hereof. The parties designated in the Pooling and Servicing Agreement may
exercise their option to purchase the Mortgage Loans and any other property
remaining in the Trust and cause the termination of the Trust in accordance with
the requirements set forth in the Pooling and Servicing Agreement. Upon
termination of the Trust and payment of the Certificates and of all
administrative expenses associated with the Trust, any remaining assets of the
Trust shall be distributed to the holders of the Class R-I Certificates.
A-6-4
<PAGE>
The Trustee has executed this Certificate on behalf of the Trust as Trustee
under the Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE CONSTRUED
IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK WITHOUT
REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
A-6-5
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed under this official seal.
LASALLE NATIONAL BANK,
as Trustee
By:
----------------------------
AUTHORIZED OFFICER
Dated:
A-6-6
<PAGE>
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS E CERTIFICATES REFERRED TO IN THE WITHIN-MENTIONED
POOLING AND SERVICING AGREEMENT.
LASALLE NATIONAL BANK,
as Authenticating Agent
BY:
----------------------------
AUTHORIZED SIGNATORY
A-6-7
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT . . . .Custodian
TEN ENT - as tenants by the (Cust)
entireties Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship
and not as tenants in Act.......................
common (State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto
- --------------------------------------------------------------------------------
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
- ----------------------------------------
| |
- ----------------------------------------
--------------------------------------
- --------------------------------------------------------------------------------
Please print or typewrite name and address of assignee
- --------------------------------------------------------------------------------
the within Certificate and does hereby or irrevocably constitute and appoint
- --------------------------------------------------------------------------------
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:_______________________________ _______________________________________
NOTICE: The signature to this
assignment must correspond with the
name as written upon the face of this
Certificate in every particular without
alteration or enlargement or any change
whatever.
- -------------------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by a
commercial bank or trust company or by a
member firm of the New York Stock
Exchange or another national securities
exchange. Notarized or witnessed
signatures are not acceptable.
A-6-8
<PAGE>
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to ____________ for the account of___________________________
account number _____________________ or, if mailed by check, to
__________________________. Statements should be mailed to ____________________.
This information is provided by assignee named above, or
____________________________, as its agent.
A-6-9
<PAGE>
EXHIBIT A-7
[FORM OF CLASS F CERTIFICATE]
THIS CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN THE
DEPOSITOR, EITHER UNDERWRITER, THE TRUSTEE, THE FISCAL AGENT, THE MASTER
SERVICER, THE SPECIAL SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL
NOT BE INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE
OF THE UNITED STATES AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE
TRANSFERRED EXCEPT (A)(1) TO A PERSON THAT THE SELLER REASONABLY BELIEVES IS A
QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A UNDER THE
SECURITIES ACT PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED
INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (2)
PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY
RULE 144 THEREUNDER (IF AVAILABLE), OR (3) TO A PERSON WHOM THE SELLER
REASONABLY BELIEVES IS AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING
OF RULE 501(A)(1), (2), (3) OR (7) OF REGULATION D OF THE SECURITIES ACT AND (B)
IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF THE STATES OF THE UNITED
STATES OR ANY OTHER APPLICABLE JURISDICTION.
NOTWITHSTANDING THE ABOVE, THIS CERTIFICATE MAY NOT BE SOLD, PLEDGED, OR
OTHERWISE TRANSFERRED TO ANY PERSON THAT IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO
THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED, OR ANY PERSON ACTING ON BEHALF OF ANY SUCH
PLAN OR USING THE ASSETS OF SUCH PLAN TO ACQUIRE THIS CERTIFICATE, EXCEPT FOR AN
INSURANCE COMPANY INVESTING SOLELY ASSETS OF ITS GENERAL ACCOUNT, WHICH SHALL BE
DEEMED TO HAVE REPRESENTED AND WARRANTED THAT THE PURCHASE AND OWNERSHIP OF THIS
CERTIFICATE WILL NOT RESULT IN A NON-EXEMPT PROHIBITED TRANSACTION UNDER ERISA
AND SECTION 4975 OF THE CODE.
THIS CLASS F CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE PORTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THE CERTIFICATES EVIDENCED
BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS F CERTIFICATE. ACCORDINGLY, THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS
CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE PRINCIPAL BALANCE BY INQUIRY
OF THE TRUSTEE.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
A-7-1
<PAGE>
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON 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-7-2
<PAGE>
MORGAN STANLEY CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1998-HF1
INITIAL PASS-THROUGH RATE: 7.18% CERTIFICATE PRINCIPAL BALANCE OF THIS
CLASS F CERTIFICATE AS OF THE CLOSING
DATE $51,349,000
DATE OF POOLING & SERVICING MASTER SERVICER: AMRESCO SERVICES, L.P.
AGREEMENT: AS OF MARCH 1, 1998
CUT-OFF DATE: MARCH 1, 1998 INITIAL SPECIAL SERVICER: LENNAR
PARTNERS, INC.
CLOSING DATE: MARCH 27, 1998 TRUSTEE: LASALLE NATIONAL BANK
FIRST DISTRIBUTION DATE: FISCAL AGENT: ABN AMRO BANK N.V.
APRIL 15, 1998
AGGREGATE CERTIFICATE PRINCIPAL CUSIP NO. 61745MFN8
BALANCE OF THE CLASS F CERTIFICATE
AS OF THE CLOSING DATE: $51,349,000 NO. 1
CLASS F CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
MORGAN STANLEY CAPITAL I INC.
THIS CERTIFIES THAT _________________ is the registered owner of the interest
evidenced by this Certificate in the Class F Certificates issued by the Trust
created pursuant to the Pooling and Servicing Agreement, dated as specified
above (the "Pooling and Servicing Agreement"), among Morgan Stanley Capital I
Inc. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Master
Servicer, the Special Servicer and the Fiscal Agent, a summary of certain of the
pertinent provisions of which is set forth hereafter. The Trust consists
primarily of the Mortgage Loans, such amounts as shall from time to time be held
in the Collection Account, the Distribution Account, the Insurance Policies and
any REO Properties. To the extent not defined herein, the capitalized terms used
herein have the meanings assigned in the Pooling and Servicing Agreement.
The Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Principal Balance of this
Certificate specified on the face hereof by the aggregate initial Certificate
Principal Balance of the Class F Certificates. The Certificates are designated
as the Morgan Stanley Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 1998-HF1 and are issued in sixteen Classes as specifically
set forth in the Pooling and Servicing Agreement. The Certificates will evidence
in the aggregate 100% of the beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and Servicing
Agreement and reference is made to the Pooling and Servicing Agreement for
information with respect to the interests, rights, benefits,
A-7-3
<PAGE>
obligations, proceeds, and duties evidenced hereby and the rights, duties and
obligations of the Trustee. This Certificate is issued under and is subject to
the terms, provisions and conditions of the Pooling and Servicing Agreement, to
which Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will be made
out of the Available Distribution Amount, to the extent and subject to the
limitations set forth in the Pooling and Servicing Agreement, on the 15th day of
each month or, if such 15th day is not a Business Day, the next succeeding
Business Day (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"). All sums
distributable on this Certificate are payable in the coin or currency of the
United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at a Pass-Through Rate
calculated as specified in the Pooling and Servicing Agreement on the
Certificate Principal Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by the
Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
Realized Losses and interest shortfalls on the Mortgage Loans shall be
allocated on the applicable Distribution Date to Certificateholders in the
manner set forth in the Pooling and Servicing Agreement. All Realized Losses and
interest shortfalls on the Mortgage Loans allocated to any Class of Certificates
will be allocated pro rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain collections and
recoveries respecting the Mortgage Loans, all as more specifically set forth in
the Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Collection Account shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Trustee by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Trustee with wiring
instructions no more than five business days after the related Record Date, or
otherwise by check mailed to such Certificateholder. Notwithstanding the above,
the final distribution on any Certificate will be made only upon presentation
and surrender of such Certificate at the location that will be specified in a
notice of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of
A-7-4
<PAGE>
the aggregate Certificate Principal Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. 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 the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
limited circumstances, without the consent of the Holders of any of the
Certificates.
As provided in the Pooling and Servicing 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 Corporate Trust Office of the Trustee, duly endorsed by, or
accompanied by an assignment in the form below or other written instrument of
transfer in form satisfactory to the Certificate Registrar duly executed by the
Holder hereof or such Holder's attorney duly authorized in writing, and
thereupon one or more new Certificates of the same Class in authorized
denominations will be issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the Class A
Certificates will initially be issued in denominations of $5,000 initial
Certificate Principal Balance and in any whole dollar denomination in excess
thereof. The Class X, Class B, Class C, Class D and Class E Certificates will
initially be issued in denominations of $50,000 initial Certificate Principal
Balance or Certificate Notional Amount, as applicable, and in any whole dollar
denomination in excess thereof. The Class F, Class G, Class H, Class J, Class K
and Class L Certificates will initially be issued in denominations of $100,000
initial Certificate Principal Balance or Certificate Notional Amount, as
applicable, and in any whole dollar denomination in excess thereof. Each Class
of Certificates other than the Residual Certificates will be represented by one
or more Certificates registered in the name of Cede & Co., as nominee of the
DTC. No Certificate Owner will be entitled to receive a Definitive Certificate
representing such interest, except under the limited circumstances described in
the Pooling and Servicing Agreement. The Residual Certificates will be issued in
fully registered, certificated form in minimum percentage interests of 10% and
in multiples of 10% in excess thereof.
As provided in the Pooling and Servicing Agreement and subject to certain
limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Trustee may require payment of a
sum sufficient to cover any tax or other governmental charge that may be imposed
in connection with any transfer or exchange of Certificates.
The Depositor, the Trustee, the Fiscal Agent, the Master Servicer, the
Special Servicer and the Certificate Registrar and any of their agents may treat
the Person in whose name this Certificate is registered as the owner hereof for
all purposes, and neither the Depositor, the Trustee, the Fiscal Agent, the
Master Servicer, the Special Servicer, the Certificate Registrar nor any such
agents shall be affected by notice to the contrary.
The obligations and responsibilities of the Trustee created hereby (other
than the obligation of the Trustee to make payments to the Certificateholders as
set forth in Section 10.2 of the Pooling and Servicing Agreement and other than
the obligations in the nature of information or tax reporting) shall terminate
on the earliest of (i) the later of (A) the final payment or other liquidation
of the last Mortgage Loan remaining in the Trust and (B) the disposition of all
REO Property or (ii) the sale of the property held by the Trust in accordance
with Section 10.1(b) of the Pooling and Servicing Agreement; provided that in no
event shall the Trust continue beyond the expiration of 21 years from the death
of the last survivor of the descendants of Joseph P. Kennedy, the late
Ambassador of the United States to the Court of St. James, living on the date
hereof. The parties designated in the Pooling and Servicing Agreement may
exercise their option to purchase the Mortgage Loans and any other property
remaining in the Trust and cause the termination of the Trust in accordance with
the requirements set forth in the Pooling and Servicing Agreement. Upon
termination of the Trust and payment of the Certificates and of all
administrative expenses associated with the Trust, any remaining assets of the
Trust shall be distributed to the holders of the Class R-I Certificates.
A-7-5
<PAGE>
The Trustee has executed this Certificate on behalf of the Trust as Trustee
under the Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE CONSTRUED
IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK WITHOUT
REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
A-7-6
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed under this official seal.
LASALLE NATIONAL BANK,
as Trustee
By:
----------------------------
AUTHORIZED OFFICER
Dated:
A-7-7
<PAGE>
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS F CERTIFICATES REFERRED TO IN THE WITHIN-MENTIONED
POOLING AND SERVICING AGREEMENT.
LASALLE NATIONAL BANK,
as Authenticating Agent
BY:
----------------------------
AUTHORIZED SIGNATORY
A-7-8
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT . . . .Custodian
TEN ENT - as tenants by the (Cust)
entireties Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship
and not as tenants in Act.......................
common (State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto
- --------------------------------------------------------------------------------
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
- ----------------------------------------
| |
- ----------------------------------------
--------------------------------------
- --------------------------------------------------------------------------------
Please print or typewrite name and address of assignee
- --------------------------------------------------------------------------------
the within Certificate and does hereby or irrevocably constitute and appoint
- --------------------------------------------------------------------------------
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:_______________________________ _______________________________________
NOTICE: The signature to this
assignment must correspond with the
name as written upon the face of this
Certificate in every particular without
alteration or enlargement or any change
whatever.
- -------------------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by a
commercial bank or trust company or by a
member firm of the New York Stock
Exchange or another national securities
exchange. Notarized or witnessed
signatures are not acceptable.
A-7-9
<PAGE>
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to ____________ for the account of ____________________________
account number _____________________ or, if mailed by check, to
____________________. Statements should be mailed to ______________________.
This information is provided by assignee named above, or
____________________________, as its agent.
A-7-10
<PAGE>
EXHIBIT A-8
[FORM OF CLASS G CERTIFICATE]
THIS CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN THE
DEPOSITOR, EITHER UNDERWRITER, THE TRUSTEE, THE FISCAL AGENT, THE MASTER
SERVICER, THE SPECIAL SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL
NOT BE INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE
OF THE UNITED STATES AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE
TRANSFERRED EXCEPT (A)(1) TO A PERSON THAT THE SELLER REASONABLY BELIEVES IS A
QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A UNDER THE
SECURITIES ACT PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED
INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (2)
PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY
RULE 144 THEREUNDER (IF AVAILABLE), OR (3) TO A PERSON WHOM THE SELLER
REASONABLY BELIEVES IS AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING
OF RULE 501(A)(1), (2), (3) OR (7) OF REGULATION D OF THE SECURITIES ACT AND (B)
IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF THE STATES OF THE UNITED
STATES OR ANY OTHER APPLICABLE JURISDICTION.
NOTWITHSTANDING THE ABOVE, THIS CERTIFICATE MAY NOT BE SOLD, PLEDGED, OR
OTHERWISE TRANSFERRED TO ANY PERSON THAT IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO
THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED, OR ANY PERSON ACTING ON BEHALF OF ANY SUCH
PLAN OR USING THE ASSETS OF SUCH PLAN TO ACQUIRE THIS CERTIFICATE, EXCEPT FOR AN
INSURANCE COMPANY INVESTING SOLELY ASSETS OF ITS GENERAL ACCOUNT, WHICH SHALL BE
DEEMED TO HAVE REPRESENTED AND WARRANTED THAT THE PURCHASE AND OWNERSHIP OF THIS
CERTIFICATE WILL NOT RESULT IN A NON-EXEMPT PROHIBITED TRANSACTION UNDER ERISA
AND SECTION 4975 OF THE CODE.
THIS CLASS G CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE PORTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THE CERTIFICATES EVIDENCED
BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS G CERTIFICATE. ACCORDINGLY, THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS
CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE PRINCIPAL BALANCE BY INQUIRY
OF THE TRUSTEE.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
A-8-1
<PAGE>
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON 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-8-2
<PAGE>
MORGAN STANLEY CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1998-HF1
INITIAL PASS-THROUGH RATE: 7.18% CERTIFICATE PRINCIPAL BALANCE OF THIS
CLASS G CERTIFICATE AS OF THE CLOSING
DATE $19,255,000
DATE OF POOLING & SERVICING MASTER SERVICER: AMRESCO SERVICES, L.P.
AGREEMENT: AS OF MARCH 1, 1998
CUT-OFF DATE: MARCH 1, 1998 INITIAL SPECIAL SERVICER:
LENNAR PARTNERS, INC.
CLOSING DATE: MARCH 27, 1998 TRUSTEE: LASALLE NATIONAL BANK
FIRST DISTRIBUTION DATE: FISCAL AGENT: ABN AMRO BANK N.V.
APRIL 15, 1998
AGGREGATE CERTIFICATE PRINCIPAL CUSIP NO. 61745MFP3
BALANCE OF THE CLASS G CERTIFICATE
AS OF THE CLOSING DATE: $19,255,000 NO. 1
CLASS G CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
MORGAN STANLEY CAPITAL I INC.
THIS CERTIFIES THAT _________________ is the registered owner of the interest
evidenced by this Certificate in the Class G Certificates issued by the Trust
created pursuant to the Pooling and Servicing Agreement, dated as specified
above (the "Pooling and Servicing Agreement"), among Morgan Stanley Capital I
Inc. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Master
Servicer, the Special Servicer and the Fiscal Agent, a summary of certain of the
pertinent provisions of which is set forth hereafter. The Trust consists
primarily of the Mortgage Loans, such amounts as shall from time to time be held
in the Collection Account, the Distribution Account, the Insurance Policies and
any REO Properties. To the extent not defined herein, the capitalized terms used
herein have the meanings assigned in the Pooling and Servicing Agreement.
The Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Principal Balance of this
Certificate specified on the face hereof by the aggregate initial Certificate
Principal Balance of the Class G Certificates. The Certificates are designated
as the Morgan Stanley Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 1998-HF1 and are issued in sixteen Classes as specifically
set forth in the Pooling and Servicing Agreement. The Certificates will evidence
in the aggregate 100% of the beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and Servicing
Agreement and reference is made to the Pooling and Servicing Agreement for
information with respect to the interests, rights, benefits,
A-8-3
<PAGE>
obligations, proceeds, and duties evidenced hereby and the rights, duties and
obligations of the Trustee. This Certificate is issued under and is subject to
the terms, provisions and conditions of the Pooling and Servicing Agreement, to
which Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will be made
out of the Available Distribution Amount, to the extent and subject to the
limitations set forth in the Pooling and Servicing Agreement, on the 15th day of
each month or, if such 15th day is not a Business Day, the next succeeding
Business Day (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"). All sums
distributable on this Certificate are payable in the coin or currency of the
United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at a Pass-Through Rate
calculated as specified in the Pooling and Servicing Agreement on the
Certificate Principal Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by the
Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
Realized Losses and interest shortfalls on the Mortgage Loans shall be
allocated on the applicable Distribution Date to Certificateholders in the
manner set forth in the Pooling and Servicing Agreement. All Realized Losses and
interest shortfalls on the Mortgage Loans allocated to any Class of Certificates
will be allocated pro rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain collections and
recoveries respecting the Mortgage Loans, all as more specifically set forth in
the Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Collection Account shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust.
All distributions under the Pooling and Servicing Agreement to a nominee of
The Depository Trust Company ("DTC") will be made by or on behalf of the Trustee
by wire transfer in immediately available funds to an account specified in the
request of such Certificateholder. All distributions under the Pooling and
Servicing Agreement to Certificateholders will be made by wire transfer in
immediately available funds to the account specified by the Certificateholder,
at a bank or other entity having appropriate facilities therefor, if such
Certificateholder will have provided the Trustee with wiring instructions no
more than five business days after the related Record Date, or otherwise by
check mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of
A-8-4
<PAGE>
the aggregate Certificate Principal Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. 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 the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
limited circumstances, without the consent of the Holders of any of the
Certificates.
As provided in the Pooling and Servicing 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 Corporate Trust Office of the Trustee, duly endorsed by, or
accompanied by an assignment in the form below or other written instrument of
transfer in form satisfactory to the Certificate Registrar duly executed by the
Holder hereof or such Holder's attorney duly authorized in writing, and
thereupon one or more new Certificates of the same Class in authorized
denominations will be issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the Class A
Certificates will initially be issued in denominations of $5,000 initial
Certificate Principal Balance and in any whole dollar denomination in excess
thereof. The Class X, Class B, Class C, Class D and Class E Certificates will
initially be issued in denominations of $50,000 initial Certificate Principal
Balance or Certificate Notional Amount, as applicable, and in any whole dollar
denomination in excess thereof. The Class F, Class G, Class H, Class J, Class K
and Class L Certificates will initially be issued in denominations of $100,000
initial Certificate Principal Balance or Certificate Notional Amount, as
applicable, and in any whole dollar denomination in excess thereof. Each Class
of Certificates other than the Residual Certificates will be represented by one
or more Certificates registered in the name of Cede & Co., as nominee of the
DTC. No Certificate Owner will be entitled to receive a Definitive Certificate
representing such interest, except under the limited circumstances described in
the Pooling and Servicing Agreement. The Residual Certificates will be issued in
fully registered, certificated form in minimum percentage interests of 10% and
in multiples of 10% in excess thereof.
As provided in the Pooling and Servicing Agreement and subject to certain
limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Trustee may require payment of a
sum sufficient to cover any tax or other governmental charge that may be imposed
in connection with any transfer or exchange of Certificates.
The Depositor, the Trustee, the Fiscal Agent, the Master Servicer, the
Special Servicer and the Certificate Registrar and any of their agents may treat
the Person in whose name this Certificate is registered as the owner hereof for
all purposes, and neither the Depositor, the Trustee, the Fiscal Agent, the
Master Servicer, the Special Servicer, the Certificate Registrar nor any such
agents shall be affected by notice to the contrary.
The obligations and responsibilities of the Trustee created hereby (other
than the obligation of the Trustee to make payments to the Certificateholders as
set forth in Section 10.2 of the Pooling and Servicing Agreement and other than
the obligations in the nature of information or tax reporting) shall terminate
on the earliest of (i) the later of (A) the final payment or other liquidation
of the last Mortgage Loan remaining in the Trust and (B) the disposition of all
REO Property or (ii) the sale of the property held by the Trust in accordance
with Section 10.1(b) of the Pooling and Servicing Agreement; provided that in no
event shall the Trust continue beyond the expiration of 21 years from the death
of the last survivor of the descendants of Joseph P. Kennedy, the late
Ambassador of the United States to the Court of St. James, living on the date
hereof. The parties designated in the Pooling and Servicing Agreement may
exercise their option to purchase the Mortgage Loans and any other property
remaining in the Trust and cause the termination of the Trust in accordance with
the requirements set forth in the Pooling and Servicing Agreement. Upon
termination of the Trust and payment of the Certificates and of all
administrative expenses associated with the Trust, any remaining assets of the
Trust shall be distributed to the holders of the Class R-I Certificates.
A-8-5
<PAGE>
The Trustee has executed this Certificate on behalf of the Trust as Trustee
under the Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE CONSTRUED
IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK WITHOUT
REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
A-8-6
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed under this official seal.
LASALLE NATIONAL BANK,
as Trustee
By:
----------------------------
AUTHORIZED OFFICER
Dated:
A-8-7
<PAGE>
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS G CERTIFICATES REFERRED TO IN THE WITHIN-MENTIONED
POOLING AND SERVICING AGREEMENT.
LASALLE NATIONAL BANK,
as Authenticating Agent
BY:
----------------------------
AUTHORIZED SIGNATORY
A-8-8
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT . . . .Custodian
TEN ENT - as tenants by the (Cust)
entireties Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship
and not as tenants in Act.......................
common (State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto
- --------------------------------------------------------------------------------
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
- ----------------------------------------
| |
- ----------------------------------------
--------------------------------------
- --------------------------------------------------------------------------------
Please print or typewrite name and address of assignee
- --------------------------------------------------------------------------------
the within Certificate and does hereby or irrevocably constitute and appoint
- --------------------------------------------------------------------------------
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:_______________________________ _______________________________________
NOTICE: The signature to this
assignment must correspond with the
name as written upon the face of this
Certificate in every particular without
alteration or enlargement or any change
whatever.
- -------------------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by a
commercial bank or trust company or by a
member firm of the New York Stock
Exchange or another national securities
exchange. Notarized or witnessed
signatures are not acceptable.
A-8-9
<PAGE>
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to ____________ for the account of _____________________________
account number _____________________ or, if mailed by check, to _______________.
Statements should be mailed to ______________________. This information is
provided by assignee named above, or ____________________________, as its agent.
A-8-10
<PAGE>
EXHIBIT A-9
[FORM OF CLASS H CERTIFICATE]
THIS CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN THE
DEPOSITOR, EITHER UNDERWRITER, THE TRUSTEE, THE FISCAL AGENT, THE MASTER
SERVICER, THE SPECIAL SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL
NOT BE INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE
OF THE UNITED STATES AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE
TRANSFERRED EXCEPT (A)(1) TO A PERSON THAT THE SELLER REASONABLY BELIEVES IS A
QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A UNDER THE
SECURITIES ACT PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED
INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (2)
PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY
RULE 144 THEREUNDER (IF AVAILABLE), OR (3) TO A PERSON WHOM THE SELLER
REASONABLY BELIEVES IS AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING
OF RULE 501(A)(1), (2), (3) OR (7) OF REGULATION D OF THE SECURITIES ACT AND (B)
IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF THE STATES OF THE UNITED
STATES OR ANY OTHER APPLICABLE JURISDICTION.
NOTWITHSTANDING THE ABOVE, THIS CERTIFICATE MAY NOT BE SOLD, PLEDGED, OR
OTHERWISE TRANSFERRED TO ANY PERSON THAT IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO
THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED, OR ANY PERSON ACTING ON BEHALF OF ANY SUCH
PLAN OR USING THE ASSETS OF SUCH PLAN TO ACQUIRE THIS CERTIFICATE, EXCEPT FOR AN
INSURANCE COMPANY INVESTING SOLELY ASSETS OF ITS GENERAL ACCOUNT, WHICH SHALL BE
DEEMED TO HAVE REPRESENTED AND WARRANTED THAT THE PURCHASE AND OWNERSHIP OF THIS
CERTIFICATE WILL NOT RESULT IN A NON-EXEMPT PROHIBITED TRANSACTION UNDER ERISA
AND SECTION 4975 OF THE CODE.
THIS CLASS H CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE PORTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THE CERTIFICATES EVIDENCED
BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS H CERTIFICATE. ACCORDINGLY, THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS
CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE PRINCIPAL BALANCE BY INQUIRY
OF THE TRUSTEE.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
A-9-1
<PAGE>
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON 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-9-2
<PAGE>
MORGAN STANLEY CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1998-HF1
INITIAL PASS-THROUGH RATE: 6.19% CERTIFICATE PRINCIPAL BALANCE OF THIS
CLASS H CERTIFICATE AS OF THE CLOSING
DATE $12,837,000
DATE OF POOLING & SERVICING MASTER SERVICER: AMRESCO SERVICES, L.P.
AGREEMENT: AS OF MARCH 1, 1998
CUT-OFF DATE: MARCH 1, 1998 INITIAL SPECIAL SERVICER:
LENNAR PARTNERS, INC.
CLOSING DATE: MARCH 27, 1998 TRUSTEE: LASALLE NATIONAL BANK
FIRST DISTRIBUTION DATE: FISCAL AGENT: ABN AMRO BANK N.V.
APRIL 15, 1998
AGGREGATE CERTIFICATE PRINCIPAL CUSIP NO. 61745MFQ1
BALANCE OF THE CLASS H CERTIFICATE
AS OF THE CLOSING DATE: $12,837,000 NO. 1
CLASS H CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
MORGAN STANLEY CAPITAL I INC.
THIS CERTIFIES THAT _________________ is the registered owner of the interest
evidenced by this Certificate in the Class H Certificates issued by the Trust
created pursuant to the Pooling and Servicing Agreement, dated as specified
above (the "Pooling and Servicing Agreement"), among Morgan Stanley Capital I
Inc. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Master
Servicer, the Special Servicer and the Fiscal Agent, a summary of certain of the
pertinent provisions of which is set forth hereafter. The Trust consists
primarily of the Mortgage Loans, such amounts as shall from time to time be held
in the Collection Account, the Distribution Account, the Insurance Policies and
any REO Properties. To the extent not defined herein, the capitalized terms used
herein have the meanings assigned in the Pooling and Servicing Agreement.
The Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Principal Balance of this
Certificate specified on the face hereof by the aggregate initial Certificate
Principal Balance of the Class H Certificates. The Certificates are designated
as the Morgan Stanley Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 1998-HF1 and are issued in sixteen Classes as specifically
set forth in the Pooling and Servicing Agreement. The Certificates will evidence
in the aggregate 100% of the beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and Servicing
Agreement and reference is made to the Pooling and Servicing Agreement for
information with respect to the interests, rights, benefits,
A-9-3
<PAGE>
obligations, proceeds, and duties evidenced hereby and the rights, duties and
obligations of the Trustee. This Certificate is issued under and is subject to
the terms, provisions and conditions of the Pooling and Servicing Agreement, to
which Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will be made
out of the Available Distribution Amount, to the extent and subject to the
limitations set forth in the Pooling and Servicing Agreement, on the 15th day of
each month or, if such 15th day is not a Business Day, the next succeeding
Business Day (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"). All sums
distributable on this Certificate are payable in the coin or currency of the
United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at a Pass-Through Rate
calculated as specified in the Pooling and Servicing Agreement on the
Certificate Principal Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by the
Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
Realized Losses and interest shortfalls on the Mortgage Loans shall be
allocated on the applicable Distribution Date to Certificateholders in the
manner set forth in the Pooling and Servicing Agreement. All Realized Losses and
interest shortfalls on the Mortgage Loans allocated to any Class of Certificates
will be allocated pro rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain collections and
recoveries respecting the Mortgage Loans, all as more specifically set forth in
the Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Collection Account shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust.
All distributions under the Pooling and Servicing Agreement to a nominee of
The Depository Trust Company ("DTC") will be made by or on behalf of the Trustee
by wire transfer in immediately available funds to an account specified in the
request of such Certificateholder. All distributions under the Pooling and
Servicing Agreement to Certificateholders will be made by wire transfer in
immediately available funds to the account specified by the Certificateholder,
at a bank or other entity having appropriate facilities therefor, if such
Certificateholder will have provided the Trustee with wiring instructions no
more than five business days after the related Record Date, or otherwise by
check mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of
A-9-4
<PAGE>
the aggregate Certificate Principal Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. 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 the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
limited circumstances, without the consent of the Holders of any of the
Certificates.
As provided in the Pooling and Servicing 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 Corporate Trust Office of the Trustee, duly endorsed by, or
accompanied by an assignment in the form below or other written instrument of
transfer in form satisfactory to the Certificate Registrar duly executed by the
Holder hereof or such Holder's attorney duly authorized in writing, and
thereupon one or more new Certificates of the same Class in authorized
denominations will be issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the Class A
Certificates will initially be issued in denominations of $5,000 initial
Certificate Principal Balance and in any whole dollar denomination in excess
thereof. The Class X, Class B, Class C, Class D and Class E Certificates will
initially be issued in denominations of $50,000 initial Certificate Principal
Balance or Certificate Notional Amount, as applicable, and in any whole dollar
denomination in excess thereof. The Class F, Class G, Class H, Class J, Class K
and Class L Certificates will initially be issued in denominations of $100,000
initial Certificate Principal Balance or Certificate Notional Amount, as
applicable, and in any whole dollar denomination in excess thereof. Each Class
of Certificates other than the Residual Certificates will be represented by one
or more Certificates registered in the name of Cede & Co., as nominee of the
DTC. No Certificate Owner will be entitled to receive a Definitive Certificate
representing such interest, except under the limited circumstances described in
the Pooling and Servicing Agreement. The Residual Certificates will be issued in
fully registered, certificated form in minimum percentage interests of 10% and
in multiples of 10% in excess thereof.
As provided in the Pooling and Servicing Agreement and subject to certain
limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Trustee may require payment of a
sum sufficient to cover any tax or other governmental charge that may be imposed
in connection with any transfer or exchange of Certificates.
The Depositor, the Trustee, the Fiscal Agent, the Master Servicer, the
Special Servicer and the Certificate Registrar and any of their agents may treat
the Person in whose name this Certificate is registered as the owner hereof for
all purposes, and neither the Depositor, the Trustee, the Fiscal Agent, the
Master Servicer, the Special Servicer, the Certificate Registrar nor any such
agents shall be affected by notice to the contrary.
The obligations and responsibilities of the Trustee created hereby (other
than the obligation of the Trustee to make payments to the Certificateholders as
set forth in Section 10.2 of the Pooling and Servicing Agreement and other than
the obligations in the nature of information or tax reporting) shall terminate
on the earliest of (i) the later of (A) the final payment or other liquidation
of the last Mortgage Loan remaining in the Trust and (B) the disposition of all
REO Property or (ii) the sale of the property held by the Trust in accordance
with Section 10.1(b) of the Pooling and Servicing Agreement; provided that in no
event shall the Trust continue beyond the expiration of 21 years from the death
of the last survivor of the descendants of Joseph P. Kennedy, the late
Ambassador of the United States to the Court of St. James, living on the date
hereof. The parties designated in the Pooling and Servicing Agreement may
exercise their option to purchase the Mortgage Loans and any other property
remaining in the Trust and cause the termination of the Trust in accordance with
the requirements set forth in the Pooling and Servicing Agreement. Upon
termination of the Trust and payment of the Certificates and of all
administrative expenses associated with the Trust, any remaining assets of the
Trust shall be distributed to the holders of the Class R-I Certificates.
A-9-5
<PAGE>
The Trustee has executed this Certificate on behalf of the Trust as Trustee
under the Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE CONSTRUED
IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK WITHOUT
REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
A-9-6
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed under this official seal.
LASALLE NATIONAL BANK,
as Trustee
By:
----------------------------
AUTHORIZED OFFICER
Dated:
A-9-7
<PAGE>
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS H CERTIFICATES REFERRED TO IN THE WITHIN-MENTIONED
POOLING AND SERVICING AGREEMENT.
LASALLE NATIONAL BANK,
as Authenticating Agent
BY:
----------------------------
AUTHORIZED SIGNATORY
A-9-8
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT . . . .Custodian
TEN ENT - as tenants by the (Cust)
entireties Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship
and not as tenants in Act.......................
common (State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto
- --------------------------------------------------------------------------------
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
- ----------------------------------------
| |
- ----------------------------------------
--------------------------------------
- --------------------------------------------------------------------------------
Please print or typewrite name and address of assignee
- --------------------------------------------------------------------------------
the within Certificate and does hereby or irrevocably constitute and appoint
- --------------------------------------------------------------------------------
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:_______________________________ _______________________________________
NOTICE: The signature to this
assignment must correspond with the
name as written upon the face of this
Certificate in every particular without
alteration or enlargement or any change
whatever.
- -------------------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by a
commercial bank or trust company or by a
member firm of the New York Stock
Exchange or another national securities
exchange. Notarized or witnessed
signatures are not acceptable.
A-9-9
<PAGE>
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to ____________ for the account of ____________ account number
______________ or, if mailed by check, to ________________. Statements should be
mailed to _____________. This information is provided by assignee named above,
or ___________________, as its agent.
A-9-10
<PAGE>
EXHIBIT A-10
[FORM OF CLASS J CERTIFICATE]
THIS CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN THE
DEPOSITOR, EITHER UNDERWRITER, THE TRUSTEE, THE FISCAL AGENT, THE MASTER
SERVICER, THE SPECIAL SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL
NOT BE INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE
OF THE UNITED STATES AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE
TRANSFERRED EXCEPT (A)(1) TO A PERSON THAT THE SELLER REASONABLY BELIEVES IS A
QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A UNDER THE
SECURITIES ACT PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED
INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (2)
PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY
RULE 144 THEREUNDER (IF AVAILABLE), OR (3) TO A PERSON WHOM THE SELLER
REASONABLY BELIEVES IS AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING
OF RULE 501(A)(1), (2), (3) OR (7) OF REGULATION D OF THE SECURITIES ACT AND (B)
IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF THE STATES OF THE UNITED
STATES OR ANY OTHER APPLICABLE JURISDICTION.
NOTWITHSTANDING THE ABOVE, THIS CERTIFICATE MAY NOT BE SOLD, PLEDGED, OR
OTHERWISE TRANSFERRED TO ANY PERSON THAT IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO
THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED, OR ANY PERSON ACTING ON BEHALF OF ANY SUCH
PLAN OR USING THE ASSETS OF SUCH PLAN TO ACQUIRE THIS CERTIFICATE, EXCEPT FOR AN
INSURANCE COMPANY INVESTING SOLELY ASSETS OF ITS GENERAL ACCOUNT, WHICH SHALL BE
DEEMED TO HAVE REPRESENTED AND WARRANTED THAT THE PURCHASE AND OWNERSHIP OF THIS
CERTIFICATE WILL NOT RESULT IN A NON-EXEMPT PROHIBITED TRANSACTION UNDER ERISA
AND SECTION 4975 OF THE CODE.
THIS CLASS J CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE PORTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THE CERTIFICATES EVIDENCED
BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS J CERTIFICATE. ACCORDINGLY, THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS
CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE PRINCIPAL BALANCE BY INQUIRY
OF THE TRUSTEE.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
A-10-1
<PAGE>
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON 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-10-2
<PAGE>
MORGAN STANLEY CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1998-HF1
INITIAL PASS-THROUGH RATE: 6.19% CERTIFICATE PRINCIPAL BALANCE OF THIS
CLASS J CERTIFICATE AS OF THE CLOSING
DATE $25,674,000
DATE OF POOLING & SERVICING MASTER SERVICER: AMRESCO SERVICES, L.P.
AGREEMENT: AS OF MARCH 1, 1998
CUT-OFF DATE: MARCH 1, 1998 INITIAL SPECIAL SERVICER:
LENNAR PARTNERS, INC.
CLOSING DATE: MARCH 27, 1998 TRUSTEE: LASALLE NATIONAL BANK
FIRST DISTRIBUTION DATE: FISCAL AGENT: ABN AMRO BANK N.V.
APRIL 15, 1998
AGGREGATE CERTIFICATE PRINCIPAL CUSIP NO. 61745MFR9
BALANCE OF THE CLASS J CERTIFICATE
AS OF THE CLOSING DATE: $25,674,000 NO. 1
CLASS J CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
MORGAN STANLEY CAPITAL I INC.
THIS CERTIFIES THAT _________________ is the registered owner of the interest
evidenced by this Certificate in the Class J Certificates issued by the Trust
created pursuant to the Pooling and Servicing Agreement, dated as specified
above (the "Pooling and Servicing Agreement"), among Morgan Stanley Capital I
Inc. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Master
Servicer, the Special Servicer and the Fiscal Agent, a summary of certain of the
pertinent provisions of which is set forth hereafter. The Trust consists
primarily of the Mortgage Loans, such amounts as shall from time to time be held
in the Collection Account, the Distribution Account, the Insurance Policies and
any REO Properties. To the extent not defined herein, the capitalized terms used
herein have the meanings assigned in the Pooling and Servicing Agreement.
The Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Principal Balance of this
Certificate specified on the face hereof by the aggregate initial Certificate
Principal Balance of the Class J Certificates. The Certificates are designated
as the Morgan Stanley Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 1998-HF1 and are issued in sixteen Classes as specifically
set forth in the Pooling and Servicing Agreement. The Certificates will evidence
in the aggregate 100% of the beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and Servicing
Agreement and reference is made to the Pooling and Servicing Agreement for
information with respect to the interests, rights, benefits,
A-10-3
<PAGE>
obligations, proceeds, and duties evidenced hereby and the rights, duties and
obligations of the Trustee. This Certificate is issued under and is subject to
the terms, provisions and conditions of the Pooling and Servicing Agreement, to
which Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound.In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern
Distributions of principal of and interest on this Certificate will be made
out of the Available Distribution Amount, to the extent and subject to the
limitations set forth in the Pooling and Servicing Agreement, on the 15th day of
each month or, if such 15th day is not a Business Day, the next succeeding
Business Day (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"). All sums
distributable on this Certificate are payable in the coin or currency of the
United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at a Pass-Through Rate
calculated as specified in the Pooling and Servicing Agreement on the
Certificate Principal Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by the
Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
Realized Losses and interest shortfalls on the Mortgage Loans shall be
allocated on the applicable Distribution Date to Certificateholders in the
manner set forth in the Pooling and Servicing Agreement. All Realized Losses and
interest shortfalls on the Mortgage Loans allocated to any Class of Certificates
will be allocated pro rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain collections and
recoveries respecting the Mortgage Loans, all as more specifically set forth in
the Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Collection Account shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust.
All distributions under the Pooling and Servicing Agreement to a nominee of
The Depository Trust Company ("DTC") will be made by or on behalf of the Trustee
by wire transfer in immediately available funds to an account specified in the
request of such Certificateholder. All distributions under the Pooling and
Servicing Agreement to Certificateholders will be made by wire transfer in
immediately available funds to the account specified by the Certificateholder,
at a bank or other entity having appropriate facilities therefor, if such
Certificateholder will have provided the Trustee with wiring instructions no
more than five business days after the related Record Date, or otherwise by
check mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of
A-10-4
<PAGE>
the aggregate Certificate Principal Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. 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 the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
limited circumstances, without the consent of the Holders of any of the
Certificates.
As provided in the Pooling and Servicing 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 Corporate Trust Office of the Trustee, duly endorsed by, or
accompanied by an assignment in the form below or other written instrument of
transfer in form satisfactory to the Certificate Registrar duly executed by the
Holder hereof or such Holder's attorney duly authorized in writing, and
thereupon one or more new Certificates of the same Class in authorized
denominations will be issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the Class A
Certificates will initially be issued in denominations of $5,000 initial
Certificate Principal Balance and in any whole dollar denomination in excess
thereof. The Class X, Class B, Class C, Class D and Class E Certificates will
initially be issued in denominations of $50,000 initial Certificate Principal
Balance or Certificate Notional Amount, as applicable, and in any whole dollar
denomination in excess thereof. The Class F, Class G, Class H, Class J, Class K
and Class L Certificates will initially be issued in denominations of $100,000
initial Certificate Principal Balance or Certificate Notional Amount, as
applicable, and in any whole dollar denomination in excess thereof. Each Class
of Certificates other than the Residual Certificates will be represented by one
or more Certificates registered in the name of Cede & Co., as nominee of the
DTC. No Certificate Owner will be entitled to receive a Definitive Certificate
representing such interest, except under the limited circumstances described in
the Pooling and Servicing Agreement. The Residual Certificates will be issued in
fully registered, certificated form in minimum percentage interests of 10% and
in multiples of 10% in excess thereof.
As provided in the Pooling and Servicing Agreement and subject to certain
limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Trustee may require payment of a
sum sufficient to cover any tax or other governmental charge that may be imposed
in connection with any transfer or exchange of Certificates.
The Depositor, the Trustee, the Fiscal Agent, the Master Servicer, the
Special Servicer and the Certificate Registrar and any of their agents may treat
the Person in whose name this Certificate is registered as the owner hereof for
all purposes, and neither the Depositor, the Trustee, the Fiscal Agent, the
Master Servicer, the Special Servicer, the Certificate Registrar nor any such
agents shall be affected by notice to the contrary.
The obligations and responsibilities of the Trustee created hereby (other
than the obligation of the Trustee to make payments to the Certificateholders as
set forth in Section 10.2 of the Pooling and Servicing Agreement and other than
the obligations in the nature of information or tax reporting) shall terminate
on the earliest of (i) the later of (A) the final payment or other liquidation
of the last Mortgage Loan remaining in the Trust and (B) the disposition of all
REO Property or (ii) the sale of the property held by the Trust in accordance
with Section 10.1(b) of the Pooling and Servicing Agreement; provided that in no
event shall the Trust continue beyond the expiration of 21 years from the death
of the last survivor of the descendants of Joseph P. Kennedy, the late
Ambassador of the United States to the Court of St. James, living on the date
hereof. The parties designated in the Pooling and Servicing Agreement may
exercise their option to purchase the Mortgage Loans and any other property
remaining in the Trust and cause the termination of the Trust in accordance with
the requirements set forth in the Pooling and Servicing Agreement. Upon
termination of the Trust and payment of the Certificates and of all
administrative expenses associated with the Trust, any remaining assets of the
Trust shall be distributed to the holders of the Class R-I Certificates.
A-10-5
<PAGE>
The Trustee has executed this Certificate on behalf of the Trust as Trustee
under the Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE CONSTRUED
IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK WITHOUT
REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
A-10-6
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed under this official seal.
LASALLE NATIONAL BANK,
as Trustee
By:
----------------------------
AUTHORIZED OFFICER
Dated:
A-10-7
<PAGE>
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS J CERTIFICATES REFERRED TO IN THE WITHIN-MENTIONED
POOLING AND SERVICING AGREEMENT.
LASALLE NATIONAL BANK,
as Authenticating Agent
BY:
----------------------------
AUTHORIZED SIGNATORY
A-10-8
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT . . . .Custodian
TEN ENT - as tenants by the (Cust)
entireties Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship
and not as tenants in Act.......................
common (State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto
- --------------------------------------------------------------------------------
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
- ----------------------------------------
| |
- ----------------------------------------
--------------------------------------
- --------------------------------------------------------------------------------
Please print or typewrite name and address of assignee
- --------------------------------------------------------------------------------
the within Certificate and does hereby or irrevocably constitute and appoint
- --------------------------------------------------------------------------------
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:_______________________________ _______________________________________
NOTICE: The signature to this
assignment must correspond with the
name as written upon the face of this
Certificate in every particular without
alteration or enlargement or any change
whatever.
- -------------------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by a
commercial bank or trust company or by a
member firm of the New York Stock
Exchange or another national securities
exchange. Notarized or witnessed
signatures are not acceptable.
A-10-9
<PAGE>
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to ____________ for the account of ___________________ account
number ___________________ or, if mailed by check, to ______________. Statements
should be mailed to ______________________. This information is provided by
assignee named above, or ____________________________, as its agent.
A-10-10
<PAGE>
EXHIBIT A-11
[FORM OF CLASS K CERTIFICATE]
THIS CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN THE
DEPOSITOR, EITHER UNDERWRITER, THE TRUSTEE, THE FISCAL AGENT, THE MASTER
SERVICER, THE SPECIAL SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL
NOT BE INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE
OF THE UNITED STATES AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE
TRANSFERRED EXCEPT (A)(1) TO A PERSON THAT THE SELLER REASONABLY BELIEVES IS A
QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A UNDER THE
SECURITIES ACT PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED
INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (2)
PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY
RULE 144 THEREUNDER (IF AVAILABLE), OR (3) TO A PERSON WHOM THE SELLER
REASONABLY BELIEVES IS AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING
OF RULE 501(A)(1), (2), (3) OR (7) OF REGULATION D OF THE SECURITIES ACT AND (B)
IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF THE STATES OF THE UNITED
STATES OR ANY OTHER APPLICABLE JURISDICTION.
NOTWITHSTANDING THE ABOVE, THIS CERTIFICATE MAY NOT BE SOLD, PLEDGED, OR
OTHERWISE TRANSFERRED TO ANY PERSON THAT IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO
THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED, OR ANY PERSON ACTING ON BEHALF OF ANY SUCH
PLAN OR USING THE ASSETS OF SUCH PLAN TO ACQUIRE THIS CERTIFICATE, EXCEPT FOR AN
INSURANCE COMPANY INVESTING SOLELY ASSETS OF ITS GENERAL ACCOUNT, WHICH SHALL BE
DEEMED TO HAVE REPRESENTED AND WARRANTED THAT THE PURCHASE AND OWNERSHIP OF THIS
CERTIFICATE WILL NOT RESULT IN A NON-EXEMPT PROHIBITED TRANSACTION UNDER ERISA
AND SECTION 4975 OF THE CODE.
THIS CLASS K CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE PORTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THE CERTIFICATES EVIDENCED
BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS K CERTIFICATE. ACCORDINGLY, THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS
CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE PRINCIPAL BALANCE BY INQUIRY
OF THE TRUSTEE.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
A-11-1
<PAGE>
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON 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-11-2
<PAGE>
MORGAN STANLEY CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1998-HF1
INITIAL PASS-THROUGH RATE: 6.19% CERTIFICATE PRINCIPAL BALANCE OF THIS
CLASS K CERTIFICATE AS OF THE CLOSING
DATE $9,628,000
DATE OF POOLING & SERVICING MASTER SERVICER: AMRESCO SERVICES, L.P.
AGREEMENT: AS OF MARCH 1, 1998
CUT-OFF DATE: MARCH 1, 1998 INITIAL SPECIAL SERVICER:
LENNAR PARTNERS, INC.
CLOSING DATE: MARCH 27, 1998 TRUSTEE: LASALLE NATIONAL BANK
FIRST DISTRIBUTION DATE: FISCAL AGENT: ABN AMRO BANK N.V.
APRIL 15, 1998
AGGREGATE CERTIFICATE PRINCIPAL CUSIP NO. 61745MFS7
BALANCE OF THE CLASS K CERTIFICATE
AS OF THE CLOSING DATE: $9,628,000 NO. 1
CLASS K CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
MORGAN STANLEY CAPITAL I INC.
THIS CERTIFIES THAT _________________ is the registered owner of the interest
evidenced by this Certificate in the Class K Certificates issued by the Trust
created pursuant to the Pooling and Servicing Agreement, dated as specified
above (the "Pooling and Servicing Agreement"), among Morgan Stanley Capital I
Inc. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Master
Servicer, the Special Servicer and the Fiscal Agent, a summary of certain of the
pertinent provisions of which is set forth hereafter. The Trust consists
primarily of the Mortgage Loans, such amounts as shall from time to time be held
in the Collection Account, the Distribution Account, the Insurance Policies and
any REO Properties. To the extent not defined herein, the capitalized terms used
herein have the meanings assigned in the Pooling and Servicing Agreement.
The Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Principal Balance of this
Certificate specified on the face hereof by the aggregate initial Certificate
Principal Balance of the Class K Certificates. The Certificates are designated
as the Morgan Stanley Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 1998-HF1 and are issued in sixteen Classes as specifically
set forth in the Pooling and Servicing Agreement. The Certificates will evidence
in the aggregate 100% of the beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and Servicing
Agreement and reference is made to the Pooling and Servicing Agreement for
information with respect to the interests, rights, benefits,
A-11-3
<PAGE>
obligations, proceeds, and duties evidenced hereby and the rights, duties and
obligations of the Trustee. This Certificate is issued under and is subject to
the terms, provisions and conditions of the Pooling and Servicing Agreement, to
which Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will be made
out of the Available Distribution Amount, to the extent and subject to the
limitations set forth in the Pooling and Servicing Agreement, on the 15th day of
each month or, if such 15th day is not a Business Day, the next succeeding
Business Day (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"). All sums
distributable on this Certificate are payable in the coin or currency of the
United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at a Pass-Through Rate
calculated as specified in the Pooling and Servicing Agreement on the
Certificate Principal Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by the
Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
Realized Losses and interest shortfalls on the Mortgage Loans shall be
allocated on the applicable Distribution Date to Certificateholders in the
manner set forth in the Pooling and Servicing Agreement. All Realized Losses and
interest shortfalls on the Mortgage Loans allocated to any Class of Certificates
will be allocated pro rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain collections and
recoveries respecting the Mortgage Loans, all as more specifically set forth in
the Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Collection Account shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust.
All distributions under the Pooling and Servicing Agreement to a nominee of
The Depository Trust Company ("DTC") will be made by or on behalf of the Trustee
by wire transfer in immediately available funds to an account specified in the
request of such Certificateholder. All distributions under the Pooling and
Servicing Agreement to Certificateholders will be made by wire transfer in
immediately available funds to the account specified by the Certificateholder,
at a bank or other entity having appropriate facilities therefor, if such
Certificateholder will have provided the Trustee with wiring instructions no
more than five business days after the related Record Date, or otherwise by
check mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of
A-11-4
<PAGE>
the aggregate Certificate Principal Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. 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 the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
limited circumstances, without the consent of the Holders of any of the
Certificates.
As provided in the Pooling and Servicing 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 Corporate Trust Office of the Trustee, duly endorsed by, or
accompanied by an assignment in the form below or other written instrument of
transfer in form satisfactory to the Certificate Registrar duly executed by the
Holder hereof or such Holder's attorney duly authorized in writing, and
thereupon one or more new Certificates of the same Class in authorized
denominations will be issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the Class A
Certificates will initially be issued in denominations of $5,000 initial
Certificate Principal Balance and in any whole dollar denomination in excess
thereof. The Class X, Class B, Class C, Class D and Class E Certificates will
initially be issued in denominations of $50,000 initial Certificate Principal
Balance or Certificate Notional Amount, as applicable, and in any whole dollar
denomination in excess thereof. The Class F, Class G, Class H, Class J, Class K
and Class L Certificates will initially be issued in denominations of $100,000
initial Certificate Principal Balance or Certificate Notional Amount, as
applicable, and in any whole dollar denomination in excess thereof. Each Class
of Certificates other than the Residual Certificates will be represented by one
or more Certificates registered in the name of Cede & Co., as nominee of the
DTC. No Certificate Owner will be entitled to receive a Definitive Certificate
representing such interest, except under the limited circumstances described in
the Pooling and Servicing Agreement. The Residual Certificates will be issued in
fully registered, certificated form in minimum percentage interests of 10% and
in multiples of 10% in excess thereof.
As provided in the Pooling and Servicing Agreement and subject to certain
limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Trustee may require payment of a
sum sufficient to cover any tax or other governmental charge that may be imposed
in connection with any transfer or exchange of Certificates.
The Depositor, the Trustee, the Fiscal Agent, the Master Servicer, the
Special Servicer and the Certificate Registrar and any of their agents may treat
the Person in whose name this Certificate is registered as the owner hereof for
all purposes, and neither the Depositor, the Trustee, the Fiscal Agent, the
Master Servicer, the Special Servicer, the Certificate Registrar nor any such
agents shall be affected by notice to the contrary.
The obligations and responsibilities of the Trustee created hereby (other
than the obligation of the Trustee to make payments to the Certificateholders as
set forth in Section 10.2 of the Pooling and Servicing Agreement and other than
the obligations in the nature of information or tax reporting) shall terminate
on the earliest of (i) the later of (A) the final payment or other liquidation
of the last Mortgage Loan remaining in the Trust and (B) the disposition of all
REO Property or (ii) the sale of the property held by the Trust in accordance
with Section 10.1(b) of the Pooling and Servicing Agreement; provided that in no
event shall the Trust continue beyond the expiration of 21 years from the death
of the last survivor of the descendants of Joseph P. Kennedy, the late
Ambassador of the United States to the Court of St. James, living on the date
hereof. The parties designated in the Pooling and Servicing Agreement may
exercise their option to purchase the Mortgage Loans and any other property
remaining in the Trust and cause the termination of the Trust in accordance with
the requirements set forth in the Pooling and Servicing Agreement. Upon
termination of the Trust and payment of the Certificates and of all
administrative expenses associated with the Trust, any remaining assets of the
Trust shall be distributed to the holders of the Class R-I Certificates.
A-11-5
<PAGE>
The Trustee has executed this Certificate on behalf of the Trust as Trustee
under the Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE CONSTRUED
IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK WITHOUT
REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
A-11-6
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed under this official seal.
LASALLE NATIONAL BANK,
as Trustee
By:
----------------------------
AUTHORIZED OFFICER
Dated:
A-11-7
<PAGE>
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS K CERTIFICATES REFERRED TO IN THE WITHIN-MENTIONED
POOLING AND SERVICING AGREEMENT.
LASALLE NATIONAL BANK,
as Authenticating Agent
BY:
----------------------------
AUTHORIZED SIGNATORY
A-11-8
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT . . . .Custodian
TEN ENT - as tenants by the (Cust)
entireties Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship
and not as tenants in Act.......................
common (State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto
- --------------------------------------------------------------------------------
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
- ----------------------------------------
| |
- ----------------------------------------
--------------------------------------
- --------------------------------------------------------------------------------
Please print or typewrite name and address of assignee
- --------------------------------------------------------------------------------
the within Certificate and does hereby or irrevocably constitute and appoint
- --------------------------------------------------------------------------------
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:_______________________________ _______________________________________
NOTICE: The signature to this
assignment must correspond with the
name as written upon the face of this
Certificate in every particular without
alteration or enlargement or any change
whatever.
- -------------------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by a
commercial bank or trust company or by a
member firm of the New York Stock
Exchange or another national securities
exchange. Notarized or witnessed
signatures are not acceptable.
A-11-9
<PAGE>
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to ____________ for the account of _____________________________
account number _____________________ or, if mailed by check, to _______________.
Statements should be mailed to ______________________. This information is
provided by assignee named above, or ____________________________, as its agent.
A-11-10
<PAGE>
EXHIBIT A-12
[FORM OF CLASS L CERTIFICATE]
THIS CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN THE
DEPOSITOR, EITHER UNDERWRITER, THE TRUSTEE, THE FISCAL AGENT, THE MASTER
SERVICER, THE SPECIAL SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL
NOT BE INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE
OF THE UNITED STATES AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE
TRANSFERRED EXCEPT (A)(1) TO A PERSON THAT THE SELLER REASONABLY BELIEVES IS A
QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A UNDER THE
SECURITIES ACT PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED
INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (2)
PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY
RULE 144 THEREUNDER (IF AVAILABLE), OR (3) TO A PERSON WHOM THE SELLER
REASONABLY BELIEVES IS AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING
OF RULE 501(A)(1), (2), (3) OR (7) OF REGULATION D OF THE SECURITIES ACT AND (B)
IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF THE STATES OF THE UNITED
STATES OR ANY OTHER APPLICABLE JURISDICTION.
NOTWITHSTANDING THE ABOVE, THIS CERTIFICATE MAY NOT BE SOLD, PLEDGED, OR
OTHERWISE TRANSFERRED TO ANY PERSON THAT IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO
THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED, OR ANY PERSON ACTING ON BEHALF OF ANY SUCH
PLAN OR USING THE ASSETS OF SUCH PLAN TO ACQUIRE THIS CERTIFICATE, EXCEPT FOR AN
INSURANCE COMPANY INVESTING SOLELY ASSETS OF ITS GENERAL ACCOUNT, WHICH SHALL BE
DEEMED TO HAVE REPRESENTED AND WARRANTED THAT THE PURCHASE AND OWNERSHIP OF THIS
CERTIFICATE WILL NOT RESULT IN A NON-EXEMPT PROHIBITED TRANSACTION UNDER ERISA
AND SECTION 4975 OF THE CODE.
THIS CLASS K CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE PORTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THE CERTIFICATES EVIDENCED
BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS K CERTIFICATE. ACCORDINGLY, THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS
CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE PRINCIPAL BALANCE BY INQUIRY
OF THE TRUSTEE.
A-12-1
<PAGE>
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON 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-12-2
<PAGE>
MORGAN STANLEY CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1998-HF1
INITIAL PASS-THROUGH RATE: 6.19% CERTIFICATE PRINCIPAL BALANCE OF THIS
CLASS L CERTIFICATE AS OF THE CLOSING
DATE $22,465,560
DATE OF POOLING & SERVICING MASTER SERVICER: AMRESCO SERVICES, L.P.
AGREEMENT: AS OF MARCH 1, 1998
CUT-OFF DATE: MARCH 1, 1998 INITIAL SPECIAL SERVICER:
LENNAR PARTNERS, INC.
CLOSING DATE: MARCH 27, 1998 TRUSTEE: LASALLE NATIONAL BANK
FIRST DISTRIBUTION DATE: FISCAL AGENT: ABN AMRO BANK N.V.
APRIL 15, 1998
AGGREGATE CERTIFICATE PRINCIPAL CUSIP NO. 61745MFT5
BALANCE OF THE CLASS L CERTIFICATE
AS OF THE CLOSING DATE: $22,465,560 NO. 1
CLASS L CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
MORGAN STANLEY CAPITAL I INC.
THIS CERTIFIES THAT _________________ is the registered owner of the interest
evidenced by this Certificate in the Class L Certificates issued by the Trust
created pursuant to the Pooling and Servicing Agreement, dated as specified
above (the "Pooling and Servicing Agreement"), among Morgan Stanley Capital I
Inc. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Master
Servicer, the Special Servicer and the Fiscal Agent, a summary of certain of the
pertinent provisions of which is set forth hereafter. The Trust consists
primarily of the Mortgage Loans, such amounts as shall from time to time be held
in the Collection Account, the Distribution Account, the Insurance Policies and
any REO Properties. To the extent not defined herein, the capitalized terms used
herein have the meanings assigned in the Pooling and Servicing Agreement.
The Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Principal Balance of this
Certificate specified on the face hereof by the aggregate initial Certificate
Principal Balance of the Class L Certificates. The Certificates are designated
as the Morgan Stanley Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 1998-HF1 and are issued in sixteen Classes as specifically
set forth in the Pooling and Servicing Agreement. The Certificates will evidence
in the aggregate 100% of the beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and Servicing
Agreement and reference is made to the Pooling and Servicing Agreement for
information with respect to the interests, rights, benefits,
A-12-3
<PAGE>
obligations, proceeds, and duties evidenced hereby and the rights, duties and
obligations of the Trustee. This Certificate is issued under and is subject to
the terms, provisions and conditions of the Pooling and Servicing Agreement, to
which Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will be made
out of the Available Distribution Amount, to the extent and subject to the
limitations set forth in the Pooling and Servicing Agreement, on the 15th day of
each month or, if such 15th day is not a Business Day, the next succeeding
Business Day (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"). All sums
distributable on this Certificate are payable in the coin or currency of the
United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at a Pass-Through Rate
calculated as specified in the Pooling and Servicing Agreement on the
Certificate Principal Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by the
Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
Realized Losses and interest shortfalls on the Mortgage Loans shall be
allocated on the applicable Distribution Date to Certificateholders in the
manner set forth in the Pooling and Servicing Agreement. All Realized Losses and
interest shortfalls on the Mortgage Loans allocated to any Class of Certificates
will be allocated pro rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain collections and
recoveries respecting the Mortgage Loans, all as more specifically set forth in
the Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Collection Account shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust.
All distributions under the Pooling and Servicing Agreement to a nominee of
The Depository Trust Company ("DTC") will be made by or on behalf of the Trustee
by wire transfer in immediately available funds to an account specified in the
request of such Certificateholder. All distributions under the Pooling and
Servicing Agreement to Certificateholders will be made by wire transfer in
immediately available funds to the account specified by the Certificateholder,
at a bank or other entity having appropriate facilities therefor, if such
Certificateholder will have provided the Trustee with wiring instructions no
more than five business days after the related Record Date, or otherwise by
check mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of
A-12-4
<PAGE>
the aggregate Certificate Principal Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. 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 the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
limited circumstances, without the consent of the Holders of any of the
Certificates.
As provided in the Pooling and Servicing 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 Corporate Trust Office of the Trustee, duly endorsed by, or
accompanied by an assignment in the form below or other written instrument of
transfer in form satisfactory to the Certificate Registrar duly executed by the
Holder hereof or such Holder's attorney duly authorized in writing, and
thereupon one or more new Certificates of the same Class in authorized
denominations will be issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the Class A
Certificates will initially be issued in denominations of $5,000 initial
Certificate Principal Balance and in any whole dollar denomination in excess
thereof. The Class X, Class B, Class C, Class D and Class E Certificates will
initially be issued in denominations of $50,000 initial Certificate Principal
Balance or Certificate Notional Amount, as applicable, and in any whole dollar
denomination in excess thereof. The Class F, Class G, Class H, Class J, Class K
and Class L Certificates will initially be issued in denominations of $100,000
initial Certificate Principal Balance or Certificate Notional Amount, as
applicable, and in any whole dollar denomination in excess thereof. Each Class
of Certificates other than the Residual Certificates will be represented by one
or more Certificates registered in the name of Cede & Co., as nominee of the
DTC. No Certificate Owner will be entitled to receive a Definitive Certificate
representing such interest, except under the limited circumstances described in
the Pooling and Servicing Agreement. The Residual Certificates will be issued in
fully registered, certificated form in minimum percentage interests of 10% and
in multiples of 10% in excess thereof.
As provided in the Pooling and Servicing Agreement and subject to certain
limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Trustee may require payment of a
sum sufficient to cover any tax or other governmental charge that may be imposed
in connection with any transfer or exchange of Certificates.
The Depositor, the Trustee, the Fiscal Agent, the Master Servicer, the
Special Servicer and the Certificate Registrar and any of their agents may treat
the Person in whose name this Certificate is registered as the owner hereof for
all purposes, and neither the Depositor, the Trustee, the Fiscal Agent, the
Master Servicer, the Special Servicer, the Certificate Registrar nor any such
agents shall be affected by notice to the contrary.
The obligations and responsibilities of the Trustee created hereby (other
than the obligation of the Trustee to make payments to the Certificateholders as
set forth in Section 10.2 of the Pooling and Servicing Agreement and other than
the obligations in the nature of information or tax reporting) shall terminate
on the earliest of (i) the later of (A) the final payment or other liquidation
of the last Mortgage Loan remaining in the Trust and (B) the disposition of all
REO Property or (ii) the sale of the property held by the Trust in accordance
with Section 10.1(b) of the Pooling and Servicing Agreement; provided that in no
event shall the Trust continue beyond the expiration of 21 years from the death
of the last survivor of the descendants of Joseph P. Kennedy, the late
Ambassador of the United States to the Court of St. James, living on the date
hereof. The parties designated in the Pooling and Servicing Agreement may
exercise their option to purchase the Mortgage Loans and any other property
remaining in the Trust and cause the termination of the Trust in accordance with
the requirements set forth in the Pooling and Servicing Agreement. Upon
termination of the Trust and payment of the Certificates and of all
administrative expenses associated with the Trust, any remaining assets of the
Trust shall be distributed to the holders of the Class R-I Certificates.
A-12-5
<PAGE>
The Trustee has executed this Certificate on behalf of the Trust as Trustee
under the Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE CONSTRUED
IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK WITHOUT
REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
A-12-6
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed under this official seal.
LASALLE NATIONAL BANK,
as Trustee
By:
----------------------------
AUTHORIZED OFFICER
Dated:
A-12-7
<PAGE>
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS L CERTIFICATES REFERRED TO IN THE WITHIN-MENTIONED
POOLING AND SERVICING AGREEMENT.
LASALLE NATIONAL BANK,
as Authenticating Agent
BY:
----------------------------
AUTHORIZED SIGNATORY
A-12-8
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT . . . .Custodian
TEN ENT - as tenants by the (Cust)
entireties Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship
and not as tenants in Act.......................
common (State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto
- --------------------------------------------------------------------------------
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
- ----------------------------------------
| |
- ----------------------------------------
--------------------------------------
- --------------------------------------------------------------------------------
Please print or typewrite name and address of assignee
- --------------------------------------------------------------------------------
the within Certificate and does hereby or irrevocably constitute and appoint
- --------------------------------------------------------------------------------
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:_______________________________ _______________________________________
NOTICE: The signature to this
assignment must correspond with the
name as written upon the face of this
Certificate in every particular without
alteration or enlargement or any change
whatever.
- -------------------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by a
commercial bank or trust company or by a
member firm of the New York Stock
Exchange or another national securities
exchange. Notarized or witnessed
signatures are not acceptable.
A-12-9
<PAGE>
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to ____________ for the account of ______________________
account number _____________________ or, if mailed by check, to ______________.
Statements should be mailed to ______________________. This information is
provided by assignee named above, or ____________________________, as its agent.
A-12-10
<PAGE>
EXHIBIT A-13
[FORM OF CLASS R-I CERTIFICATE]
THIS CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN THE
DEPOSITOR, EITHER UNDERWRITER, THE TRUSTEE, THE FISCAL AGENT, THE MASTER
SERVICER, THE SPECIAL SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL
NOT BE INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE
OF THE UNITED STATES AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE
TRANSFERRED EXCEPT (A)(1) TO A PERSON THAT THE SELLER REASONABLY BELIEVES IS A
QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A UNDER THE
SECURITIES ACT PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED
INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (2)
PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY
RULE 144 THEREUNDER (IF AVAILABLE), OR (3) TO A PERSON WHOM THE SELLER
REASONABLY BELIEVES IS AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING
OF RULE 501(A)(1), (2), (3) OR (7) OF REGULATION D OF THE SECURITIES ACT AND (B)
IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF THE STATES OF THE UNITED
STATES OR ANY OTHER APPLICABLE JURISDICTION.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS THE
"RESIDUAL INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE"). THIS CERTIFICATE MAY NOT BE TRANSFERRED TO A
NON-UNITED STATES PERSON.
THIS CERTIFICATE MAY NOT BE SOLD, PLEDGED OR OTHERWISE TRANSFERRED TO
"DISQUALIFIED ORGANIZATIONS" WITHIN THE MEANING OF THE CODE.
A SALE, TRANSFER OR OTHER DISPOSITION OF THIS CLASS R-I CERTIFICATE MAY BE MADE
ONLY IF THE PROPOSED TRANSFEREE PROVIDES A TRANSFER AFFIDAVIT TO THE TRUSTEE TO
THE EFFECT THAT (1) SUCH TRANSFEREE AGREES TO BE BOUND BY THE TERMS OF THE
POOLING AND SERVICING AGREEMENT AND ALL RESTRICTIONS SET FORTH ON THE FACE
HEREOF, (2) SUCH TRANSFEREE IS NOT (A) THE UNITED STATES, ANY STATE OR POLITICAL
SUBDIVISION THEREOF OR ANY AGENCY OR INSTRUMENTALITY OF ANY OF THE FOREGOING
(OTHER THAN AN INSTRUMENTALITY WHICH IS A CORPORATION IF ALL OF ITS ACTIVITIES
ARE SUBJECT TO TAX AND, EXCEPT FOR FHLMC, A MAJORITY ITS BOARD OF DIRECTORS IS
NOT SELECTED BY ANY SUCH GOVERNMENTAL UNIT), (B) AN ORGANIZATION (OTHER THAN
CERTAIN FARMERS' COOPERATIVES DESCRIBED IN SECTION 521 OF THE CODE) WHICH IS
EXEMPT FROM THE TAX IMPOSED BY CHAPTER 1 OF THE CODE (UNLESS SUCH ORGANIZATION
IS SUBJECT TO THE TAX IMPOSED BY SECTION 511 OF THE CODE ON UNRELATED BUSINESS
TAXABLE INCOME), (C) A RURAL ELECTRIC OR TELEPHONE COOPERATIVE DESCRIBED IN
SECTION 1381 OF THE CODE (ANY SUCH PERSON DESCRIBED IN THE FOREGOING CLAUSES
(A), (B) OR (C) BEING HEREINAFTER REFERRED TO AS A "DISQUALIFIED ORGANIZATION"),
(D) A PERSON THAT IS NOT A CITIZEN OF OR RESIDENT OF THE UNITED STATES, A
CORPORATION, PARTNERSHIP OR OTHER ENTITY CREATED OR ORGANIZED IN, OR UNDER THE
LAWS OF,
A-13-1
<PAGE>
THE UNITED STATES OR ANY POLITICAL SUBDIVISION THEREOF, OR AN ESTATE 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 TRADE OR BUSINESS IN THE UNITED STATES OR A TRUST SUBJECT TO THE
CONTROL OF A UNITED STATES FIDUCIARY AND THE PRIMARY SUPERVISION OF A UNITED
STATES COURT (ANY SUCH PERSON BEING HEREINAFTER REFERRED TO AS A "UNITED STATES
PERSON") OR (E) AN AGENT OF A DISQUALIFIED ORGANIZATION OR A NONUNITED STATES
PERSON, AND (3) NO PURPOSE OF SUCH TRANSFER IS TO ENABLE THE TRANSFEROR TO
IMPEDE THE ASSESSMENT OR COLLECTION OF TAX. NOTWITHSTANDING THE REGISTRATION IN
THE CERTIFICATE REGISTER OF ANY TRANSFER, SALE OR OTHER DISPOSITION OF THIS
CLASS R-I CERTIFICATE TO A DISQUALIFIED ORGANIZATION OR A NONUNITED STATES
PERSON OR AN AGENT OF A DISQUALIFIED ORGANIZATION OR A NON-UNITED STATES PERSON,
OR TO ANY OTHER PROHIBITED TRANSFEREE AS PROVIDED IN THE POOLING AND SERVICING
AGREEMENT, 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, INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OF DISTRIBUTIONS
ON THIS CERTIFICATE. EACH HOLDER OF A CLASS R-I CERTIFICATE BY ACCEPTANCE OF
THIS CERTIFICATE SHALL BE DEEMED TO HAVE CONSENTED TO THE PROVISIONS OF THIS
PARAGRAPH.
A-13-2
<PAGE>
MORGAN STANLEY CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1998-HF1
PERCENTAGE INTEREST OF THIS MASTER SERVICER: AMRESCO SERVICES, L.P.
CLASS R-I CERTIFICATE: _____%
DATE OF POOLING & SERVICING INITIAL SPECIAL SERVICER:
AGREEMENT: AS OF MARCH 1, 1998 LENNAR PARTNERS, INC.
CUT-OFF DATE: MARCH 1, 1998 TRUSTEE: LASALLE NATIONAL BANK
CLOSING DATE: MARCH 27, 1998 FISCAL AGENT: ABN AMRO BANK N.V.
FIRST DISTRIBUTION DATE:
APRIL 15, 1998
NO. _________
CLASS R-I CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
MORGAN STANLEY CAPITAL I INC.
THIS CERTIFIES THAT _________________ is the registered owner of the interest
evidenced by this Certificate in the Class R-I Certificates issued by the Trust
created pursuant to the Pooling and Servicing Agreement, dated as specified
above (the "Pooling and Servicing Agreement"), among Morgan Stanley Capital I
Inc. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Master
Servicer, the Special Servicer and the Fiscal Agent, a summary of certain of the
pertinent provisions of which is set forth hereafter. The Trust consists
primarily of the Mortgage Loans, such amounts as shall from time to time be held
in the Collection Account, the Distribution Account, the Insurance Policies and
any REO Properties. To the extent not defined herein, the capitalized terms used
herein have the meanings assigned in the Pooling and Servicing Agreement.
The Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing the Percentage Interest in the Class
R-I Certificates specified on the face hereof. The Certificates are designated
as the Morgan Stanley Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 1998-HF1 and are issued in sixteen Classes as specifically
set forth in the Pooling and Servicing Agreement. The Certificates will evidence
in the aggregate 100% of the beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and Servicing
Agreement and reference is made to the Pooling and Servicing Agreement for
information with respect to the interests, rights, benefits, obligations,
proceeds, and duties evidenced hereby and the rights, duties and obligations of
the Trustee. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
A-13-3
<PAGE>
The Holder of this Certificate shall be entitled to receive only certain
amounts set forth in the Pooling and Servicing Agreement, including a
distribution upon termination of the Pooling and Servicing Agreement and the
related REMIC created thereby of the amounts which remain on deposit in the
Distribution Account after payment to the Holders of all other Certificates of
all amounts set forth in the Pooling and Servicing Agreement. Distributions on
this Certificate will be made out of the Available Distribution Amount, to the
extent and subject to the limitations set forth in the Pooling and Servicing
Agreement, on the 15th day of each month or, if such 15th day is not a Business
Day, the next succeeding Business Day (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"). All sums distributable on this Certificate are payable in the coin or
currency of the United States of America as at the time of payment is legal
tender for the payment of public and private debts.
Unless the certificate of authentication hereon has been executed by the
Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
Realized Losses and interest shortfalls on the Mortgage Loans shall be
allocated on the applicable Distribution Date to Certificateholders in the
manner set forth in the Pooling and Servicing Agreement. All Realized Losses and
interest shortfalls on the Mortgage Loans allocated to any Class of Certificates
will be allocated pro rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain collections and
recoveries respecting the Mortgage Loans, all as more specifically set forth in
the Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Collection Account shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust.
All distributions under the Pooling and Servicing Agreement to a nominee of
The Depository Trust Company ("DTC") will be made by or on behalf of the Trustee
by wire transfer in immediately available funds to an account specified in the
request of such Certificateholder. All distributions under the Pooling and
Servicing Agreement to Certificateholders will be made by wire transfer in
immediately available funds to the account specified by the Certificateholder,
at a bank or other entity having appropriate facilities therefor, if such
Certificateholder will have provided the Trustee with wiring instructions no
more than five business days after the related Record Date, or otherwise by
check mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the aggregate Certificate Principal Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. 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 the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
limited circumstances, without the consent of the Holders of any of the
Certificates.
As provided in the Pooling and Servicing 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 Corporate Trust Office of the Trustee, duly endorsed by, or
accompanied by an assignment in the form below or other written instrument of
transfer in form satisfactory to the Certificate Registrar duly executed by the
Holder hereof or such Holder's attorney duly authorized in writing, and
thereupon
A-13-4
<PAGE>
one or more new Certificates of the same Class in authorized denominations will
be issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the Class A
Certificates will initially be issued in denominations of $5,000 initial
Certificate Principal Balance and in any whole dollar denomination in excess
thereof. The Class X, Class B, Class C, Class D and Class E Certificates will
initially be issued in denominations of $50,000 initial Certificate Principal
Balance or Certificate Notional Amount, as applicable, and in any whole dollar
denomination in excess thereof. The Class F, Class G, Class H, Class J, Class K
and Class L Certificates will initially be issued in denominations of $100,000
initial Certificate Principal Balance or Certificate Notional Amount, as
applicable, and in any whole dollar denomination in excess thereof. Each Class
of Certificates other than the Residual Certificates will be represented by one
or more Certificates registered in the name of Cede & Co., as nominee of the
DTC. No Certificate Owner will be entitled to receive a Definitive Certificate
representing such interest, except under the limited circumstances described in
the Pooling and Servicing Agreement. The Residual Certificates will be issued in
fully registered, certificated form in minimum percentage interests of 10% and
in multiples of 10% in excess thereof.
As provided in the Pooling and Servicing Agreement and subject to certain
limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Trustee may require payment of a
sum sufficient to cover any tax or other governmental charge that may be imposed
in connection with any transfer or exchange of Certificates.
The Depositor, the Trustee, the Fiscal Agent, the Master Servicer, the
Special Servicer and the Certificate Registrar and any of their agents may treat
the Person in whose name this Certificate is registered as the owner hereof for
all purposes, and neither the Depositor, the Trustee, the Fiscal Agent, the
Master Servicer, the Special Servicer, the Certificate Registrar nor any such
agents shall be affected by notice to the contrary.
The obligations and responsibilities of the Trustee created hereby (other
than the obligation of the Trustee to make payments to the Certificateholders as
set forth in Section 10.2 of the Pooling and Servicing Agreement and other than
the obligations in the nature of information or tax reporting) shall terminate
on the earliest of (i) the later of (A) the final payment or other liquidation
of the last Mortgage Loan remaining in the Trust and (B) the disposition of all
REO Property or (ii) the sale of the property held by the Trust in accordance
with Section 10.1(b) of the Pooling and Servicing Agreement; provided that in no
event shall the Trust continue beyond the expiration of 21 years from the death
of the last survivor of the descendants of Joseph P. Kennedy, the late
Ambassador of the United States to the Court of St. James, living on the date
hereof. The parties designated in the Pooling and Servicing Agreement may
exercise their option to purchase the Mortgage Loans and any other property
remaining in the Trust and cause the termination of the Trust in accordance with
the requirements set forth in the Pooling and Servicing Agreement. Upon
termination of the Trust and payment of the Certificates and of all
administrative expenses associated with the Trust, any remaining assets of the
Trust shall be distributed to the holders of the Class R-I Certificates.
The Trustee has executed this Certificate on behalf of the Trust as Trustee
under the Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE CONSTRUED
IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK WITHOUT
REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
A-13-5
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed under this official seal.
LASALLE NATIONAL BANK,
as Trustee
By:
----------------------------
AUTHORIZED OFFICER
Dated:
A-13-6
<PAGE>
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS R-I CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE NATIONAL BANK,
as Authenticating Agent
BY:
----------------------------
AUTHORIZED SIGNATORY
A-13-7
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT . . . .Custodian
TEN ENT - as tenants by the (Cust)
entireties Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship
and not as tenants in Act.......................
common (State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto
- --------------------------------------------------------------------------------
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
- ----------------------------------------
| |
- ----------------------------------------
--------------------------------------
- --------------------------------------------------------------------------------
Please print or typewrite name and address of assignee
- --------------------------------------------------------------------------------
the within Certificate and does hereby or irrevocably constitute and appoint
- --------------------------------------------------------------------------------
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:_______________________________ _______________________________________
NOTICE: The signature to this
assignment must correspond with the
name as written upon the face of this
Certificate in every particular without
alteration or enlargement or any change
whatever.
- -------------------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by a
commercial bank or trust company or by a
member firm of the New York Stock
Exchange or another national securities
exchange. Notarized or witnessed
signatures are not acceptable.
A-13-8
<PAGE>
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to ____________ for the account of ____________________ account
number _____________________ or, if mailed by check, to ________________.
Statements should be mailed to _____________________. This information is
provided by assignee named above, or ____________________________, as its agent.
A-13-9
<PAGE>
EXHIBIT A-14
[FORM OF CLASS R-II CERTIFICATE]
THIS CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN THE
DEPOSITOR, EITHER UNDERWRITER, THE TRUSTEE, THE FISCAL AGENT, THE MASTER
SERVICER, THE SPECIAL SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL
NOT BE INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE
OF THE UNITED STATES AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE
TRANSFERRED EXCEPT (A)(1) TO A PERSON THAT THE SELLER REASONABLY BELIEVES IS A
QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A UNDER THE
SECURITIES ACT PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED
INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (2)
PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY
RULE 144 THEREUNDER (IF AVAILABLE), OR (3) TO A PERSON WHOM THE SELLER
REASONABLY BELIEVES IS AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING
OF RULE 501(A)(1), (2), (3) OR (7) OF REGULATION D OF THE SECURITIES ACT AND (B)
IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF THE STATES OF THE UNITED
STATES OR ANY OTHER APPLICABLE JURISDICTION.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS THE
"RESIDUAL INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE"). THIS CERTIFICATE MAY NOT BE TRANSFERRED TO A
NON-UNITED STATES PERSON.
THIS CERTIFICATE MAY NOT BE SOLD, PLEDGED OR OTHERWISE TRANSFERRED TO
"DISQUALIFIED ORGANIZATIONS" WITHIN THE MEANING OF THE CODE.
A SALE, TRANSFER OR OTHER DISPOSITION OF THIS CLASS R-II CERTIFICATE MAY BE MADE
ONLY IF THE PROPOSED TRANSFEREE PROVIDES A TRANSFER AFFIDAVIT TO THE TRUSTEE TO
THE EFFECT THAT (1) SUCH TRANSFEREE AGREES TO BE BOUND BY THE TERMS OF THE
POOLING AND SERVICING AGREEMENT AND ALL RESTRICTIONS SET FORTH ON THE FACE
HEREOF, (2) SUCH TRANSFEREE IS NOT (A) THE UNITED STATES, ANY STATE OR POLITICAL
SUBDIVISION THEREOF OR ANY AGENCY OR INSTRUMENTALITY OF ANY OF THE FOREGOING
(OTHER THAN AN INSTRUMENTALITY WHICH IS A CORPORATION IF ALL OF ITS ACTIVITIES
ARE SUBJECT TO TAX AND, EXCEPT FOR FHLMC, A MAJORITY ITS BOARD OF DIRECTORS IS
NOT SELECTED BY ANY SUCH GOVERNMENTAL UNIT), (B) AN ORGANIZATION (OTHER THAN
CERTAIN FARMERS' COOPERATIVES DESCRIBED IN SECTION 521 OF THE CODE) WHICH IS
EXEMPT FROM THE TAX IMPOSED BY CHAPTER 1 OF THE CODE (UNLESS SUCH ORGANIZATION
IS SUBJECT TO THE TAX IMPOSED BY SECTION 511 OF THE CODE ON UNRELATED BUSINESS
TAXABLE INCOME), (C) A RURAL ELECTRIC OR TELEPHONE COOPERATIVE DESCRIBED IN
SECTION 1381 OF THE CODE (ANY SUCH PERSON DESCRIBED IN THE FOREGOING CLAUSES
(A), (B) OR (C) BEING HEREINAFTER REFERRED TO AS A "DISQUALIFIED ORGANIZATION"),
(D) A PERSON THAT IS NOT A CITIZEN OF OR RESIDENT OF THE UNITED STATES, A
CORPORATION, PARTNERSHIP OR OTHER ENTITY CREATED OR ORGANIZED IN, OR UNDER THE
LAWS OF,
A-14-1
<PAGE>
THE UNITED STATES OR ANY POLITICAL SUBDIVISION THEREOF, OR AN ESTATE 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 TRADE OR BUSINESS IN THE UNITED STATES OR A TRUST SUBJECT TO THE
CONTROL OF A UNITED STATES FIDUCIARY AND THE PRIMARY SUPERVISION OF A UNITED
STATES COURT (ANY SUCH PERSON BEING HEREINAFTER REFERRED TO AS A "UNITED STATES
PERSON") OR (E) AN AGENT OF A DISQUALIFIED ORGANIZATION OR A NONUNITED STATES
PERSON, AND (3) NO PURPOSE OF SUCH TRANSFER IS TO ENABLE THE TRANSFEROR TO
IMPEDE THE ASSESSMENT OR COLLECTION OF TAX. NOTWITHSTANDING THE REGISTRATION IN
THE CERTIFICATE REGISTER OF ANY TRANSFER, SALE OR OTHER DISPOSITION OF THIS
CLASS R-II CERTIFICATE TO A DISQUALIFIED ORGANIZATION OR A NONUNITED STATES
PERSON OR AN AGENT OF A DISQUALIFIED ORGANIZATION OR A NON-UNITED STATES PERSON,
OR TO ANY OTHER PROHIBITED TRANSFEREE AS PROVIDED IN THE POOLING AND SERVICING
AGREEMENT, 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, INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OF DISTRIBUTIONS
ON THIS CERTIFICATE. EACH HOLDER OF A CLASS R-II CERTIFICATE BY ACCEPTANCE OF
THIS CERTIFICATE SHALL BE DEEMED TO HAVE CONSENTED TO THE PROVISIONS OF THIS
PARAGRAPH.
A-14-2
<PAGE>
MORGAN STANLEY CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1998-HF1
PERCENTAGE INTEREST OF THIS CLASS MASTER SERVICER: AMRESCO SERVICES, L.P.
R-II CERTIFICATE: _____%
DATE OF POOLING & SERVICING INITIAL SPECIAL SERVICER:
AGREEMENT: AS OF MARCH 1, 1998 LENNAR PARTNERS, INC.
CUT-OFF DATE: MARCH 1, 1998 TRUSTEE: LASALLE NATIONAL BANK
CLOSING DATE: MARCH 27, 1998 FISCAL AGENT: ABN AMRO BANK N.V.
FIRST DISTRIBUTION DATE:
APRIL 15, 1998
NO. _________
CLASS R-II CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
MORGAN STANLEY CAPITAL I INC.
THIS CERTIFIES THAT _________________ is the registered owner of the interest
evidenced by this Certificate in the Class R-II Certificates issued by the Trust
created pursuant to the Pooling and Servicing Agreement, dated as specified
above (the "Pooling and Servicing Agreement"), among Morgan Stanley Capital I
Inc. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Master
Servicer, the Special Servicer and the Fiscal Agent, a summary of certain of the
pertinent provisions of which is set forth hereafter. The Trust consists
primarily of the Mortgage Loans, such amounts as shall from time to time be held
in the Collection Account, the Distribution Account, the Insurance Policies and
any REO Properties. To the extent not defined herein, the capitalized terms used
herein have the meanings assigned in the Pooling and Servicing Agreement.
The Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing the Percentage Interest in the Class
R-II Certificates specified on the face hereof. The Certificates are designated
as the Morgan Stanley Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 1998-HF1 and are issued in sixteen Classes as specifically
set forth in the Pooling and Servicing Agreement. The Certificates will evidence
in the aggregate 100% of the beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and Servicing
Agreement and reference is made to the Pooling and Servicing Agreement for
information with respect to the interests, rights, benefits, obligations,
proceeds, and duties evidenced hereby and the rights, duties and obligations of
the Trustee. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
A-14-3
<PAGE>
The Holder of this Certificate shall be entitled to receive only certain
amounts set forth in the Pooling and Servicing Agreement, including a
distribution upon termination of the Pooling and Servicing Agreement and the
related REMIC created thereby of the amounts which remain on deposit in the
Distribution Account after payment to the Holders of all other Certificates of
all amounts set forth in the Pooling and Servicing Agreement. Distributions on
this Certificate will be made out of the Available Distribution Amount, to the
extent and subject to the limitations set forth in the Pooling and Servicing
Agreement, on the 15th day of each month or, if such 15th day is not a Business
Day, the next succeeding Business Day (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"). All sums distributable on this Certificate are payable in the coin or
currency of the United States of America as at the time of payment is legal
tender for the payment of public and private debts.
Unless the certificate of authentication hereon has been executed by the
Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
Realized Losses and interest shortfalls on the Mortgage Loans shall be
allocated on the applicable Distribution Date to Certificateholders in the
manner set forth in the Pooling and Servicing Agreement. All Realized Losses and
interest shortfalls on the Mortgage Loans allocated to any Class of Certificates
will be allocated pro rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain collections and
recoveries respecting the Mortgage Loans, all as more specifically set forth in
the Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Collection Account shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust.
All distributions under the Pooling and Servicing Agreement to a nominee of
The Depository Trust Company ("DTC") will be made by or on behalf of the Trustee
by wire transfer in immediately available funds to an account specified in the
request of such Certificateholder. All distributions under the Pooling and
Servicing Agreement to Certificateholders will be made by wire transfer in
immediately available funds to the account specified by the Certificateholder,
at a bank or other entity having appropriate facilities therefor, if such
Certificateholder will have provided the Trustee with wiring instructions no
more than five business days after the related Record Date, or otherwise by
check mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the aggregate Certificate Principal Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. 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 the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
limited circumstances, without the consent of the Holders of any of the
Certificates.
As provided in the Pooling and Servicing 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 Corporate Trust Office of the Trustee, duly endorsed by, or
accompanied by an assignment in the form below or other written instrument of
transfer in form satisfactory to the Certificate Registrar duly executed by the
Holder hereof or such Holder's attorney duly authorized in writing, and
thereupon
A-14-4
<PAGE>
one or more new Certificates of the same Class in authorized denominations will
be issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the Class A
Certificates will initially be issued in denominations of $5,000 initial
Certificate Principal Balance and in any whole dollar denomination in excess
thereof. The Class X, Class B, Class C, Class D and Class E Certificates will
initially be issued in denominations of $50,000 initial Certificate Principal
Balance or Certificate Notional Amount, as applicable, and in any whole dollar
denomination in excess thereof. The Class F, Class G, Class H, Class J, Class K
and Class L Certificates will initially be issued in denominations of $100,000
initial Certificate Principal Balance or Certificate Notional Amount, as
applicable, and in any whole dollar denomination in excess thereof. Each Class
of Certificates other than the Residual Certificates will be represented by one
or more Certificates registered in the name of Cede & Co., as nominee of the
DTC. No Certificate Owner will be entitled to receive a Definitive Certificate
representing such interest, except under the limited circumstances described in
the Pooling and Servicing Agreement. The Residual Certificates will be issued in
fully registered, certificated form in minimum percentage interests of 10% and
in multiples of 10% in excess thereof.
As provided in the Pooling and Servicing Agreement and subject to certain
limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Trustee may require payment of a
sum sufficient to cover any tax or other governmental charge that may be imposed
in connection with any transfer or exchange of Certificates.
The Depositor, the Trustee, the Fiscal Agent, the Master Servicer, the
Special Servicer and the Certificate Registrar and any of their agents may treat
the Person in whose name this Certificate is registered as the owner hereof for
all purposes, and neither the Depositor, the Trustee, the Fiscal Agent, the
Master Servicer, the Special Servicer, the Certificate Registrar nor any such
agents shall be affected by notice to the contrary.
The obligations and responsibilities of the Trustee created hereby (other
than the obligation of the Trustee to make payments to the Certificateholders as
set forth in Section 10.2 of the Pooling and Servicing Agreement and other than
the obligations in the nature of information or tax reporting) shall terminate
on the earliest of (i) the later of (A) the final payment or other liquidation
of the last Mortgage Loan remaining in the Trust and (B) the disposition of all
REO Property or (ii) the sale of the property held by the Trust in accordance
with Section 10.1(b) of the Pooling and Servicing Agreement; provided that in no
event shall the Trust continue beyond the expiration of 21 years from the death
of the last survivor of the descendants of Joseph P. Kennedy, the late
Ambassador of the United States to the Court of St. James, living on the date
hereof. The parties designated in the Pooling and Servicing Agreement may
exercise their option to purchase the Mortgage Loans and any other property
remaining in the Trust and cause the termination of the Trust in accordance with
the requirements set forth in the Pooling and Servicing Agreement. Upon
termination of the Trust and payment of the Certificates and of all
administrative expenses associated with the Trust, any remaining assets of the
Trust shall be distributed to the holders of the Class R-I Certificates.
The Trustee has executed this Certificate on behalf of the Trust as Trustee
under the Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE CONSTRUED
IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK WITHOUT
REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
A-14-5
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed under this official seal.
LASALLE NATIONAL BANK,
as Trustee
By:
----------------------------
AUTHORIZED OFFICER
Dated:
A-14-6
<PAGE>
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS R-II CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE NATIONAL BANK,
as Authenticating Agent
BY:
----------------------------
AUTHORIZED SIGNATORY
A-14-7
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT . . . .Custodian
TEN ENT - as tenants by the (Cust)
entireties Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship
and not as tenants in Act.......................
common (State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto
- --------------------------------------------------------------------------------
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
- ----------------------------------------
| |
- ----------------------------------------
--------------------------------------
- --------------------------------------------------------------------------------
Please print or typewrite name and address of assignee
- --------------------------------------------------------------------------------
the within Certificate and does hereby or irrevocably constitute and appoint
- --------------------------------------------------------------------------------
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:_______________________________ _______________________________________
NOTICE: The signature to this
assignment must correspond with the
name as written upon the face of this
Certificate in every particular without
alteration or enlargement or any change
whatever.
- -------------------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by a
commercial bank or trust company or by a
member firm of the New York Stock
Exchange or another national securities
exchange. Notarized or witnessed
signatures are not acceptable.
A-14-8
<PAGE>
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to ____________ for the account of ________________________
account number _____________________ or, if mailed by check, to ______________.
Statements should be mailed to ______________________. This information is
provided by assignee named above, or ____________________________, as its agent.
A-14-9
<PAGE>
EXHIBIT A-15
[FORM OF CLASS R-III CERTIFICATE]
THIS CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN THE
DEPOSITOR, EITHER UNDERWRITER, THE TRUSTEE, THE FISCAL AGENT, THE MASTER
SERVICER, THE SPECIAL SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL
NOT BE INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE
OF THE UNITED STATES AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE
TRANSFERRED EXCEPT (A)(1) TO A PERSON THAT THE SELLER REASONABLY BELIEVES IS A
QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A UNDER THE
SECURITIES ACT PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED
INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (2)
PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY
RULE 144 THEREUNDER (IF AVAILABLE), OR (3) TO A PERSON WHOM THE SELLER
REASONABLY BELIEVES IS AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING
OF RULE 501(A)(1), (2), (3) OR (7) OF REGULATION D OF THE SECURITIES ACT AND (B)
IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF THE STATES OF THE UNITED
STATES OR ANY OTHER APPLICABLE JURISDICTION.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS THE
"RESIDUAL INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE"). THIS CERTIFICATE MAY NOT BE TRANSFERRED TO A
NON-UNITED STATES PERSON.
THIS CERTIFICATE MAY NOT BE SOLD, PLEDGED OR OTHERWISE TRANSFERRED TO
"DISQUALIFIED ORGANIZATIONS" WITHIN THE MEANING OF THE CODE.
A SALE, TRANSFER OR OTHER DISPOSITION OF THIS CLASS R-III CERTIFICATE MAY BE
MADE ONLY IF THE PROPOSED TRANSFEREE PROVIDES A TRANSFER AFFIDAVIT TO THE
TRUSTEE TO THE EFFECT THAT (1) SUCH TRANSFEREE AGREES TO BE BOUND BY THE TERMS
OF THE POOLING AND SERVICING AGREEMENT AND ALL RESTRICTIONS SET FORTH ON THE
FACE HEREOF, (2) SUCH TRANSFEREE IS NOT (A) THE UNITED STATES, ANY STATE OR
POLITICAL SUBDIVISION THEREOF OR ANY AGENCY OR INSTRUMENTALITY OF ANY OF THE
FOREGOING (OTHER THAN AN INSTRUMENTALITY WHICH IS A CORPORATION IF ALL OF ITS
ACTIVITIES ARE SUBJECT TO TAX AND, EXCEPT FOR FHLMC, A MAJORITY ITS BOARD OF
DIRECTORS IS NOT SELECTED BY ANY SUCH GOVERNMENTAL UNIT), (B) AN ORGANIZATION
(OTHER THAN CERTAIN FARMERS' COOPERATIVES DESCRIBED IN SECTION 521 OF THE CODE)
WHICH IS EXEMPT FROM THE TAX IMPOSED BY CHAPTER 1 OF THE CODE (UNLESS SUCH
ORGANIZATION IS SUBJECT TO THE TAX IMPOSED BY SECTION 511 OF THE CODE ON
UNRELATED BUSINESS TAXABLE INCOME), (C) A RURAL ELECTRIC OR TELEPHONE
COOPERATIVE DESCRIBED IN SECTION 1381 OF THE CODE (ANY SUCH PERSON DESCRIBED IN
THE FOREGOING CLAUSES (A), (B) OR (C) BEING HEREINAFTER REFERRED TO AS A
"DISQUALIFIED ORGANIZATION"), (D) A PERSON THAT IS NOT A CITIZEN OF OR RESIDENT
OF THE UNITED STATES, A CORPORATION, PARTNERSHIP OR OTHER ENTITY CREATED OR
ORGANIZED IN, OR UNDER THE LAWS OF,
A-15-1
<PAGE>
THE UNITED STATES OR ANY POLITICAL SUBDIVISION THEREOF, OR AN ESTATE 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 TRADE OR BUSINESS IN THE UNITED STATES OR A TRUST SUBJECT TO THE
CONTROL OF A UNITED STATES FIDUCIARY AND THE PRIMARY SUPERVISION OF A UNITED
STATES COURT (ANY SUCH PERSON BEING HEREINAFTER REFERRED TO AS A "UNITED STATES
PERSON") OR (E) AN AGENT OF A DISQUALIFIED ORGANIZATION OR A NONUNITED STATES
PERSON, AND (3) NO PURPOSE OF SUCH TRANSFER IS TO ENABLE THE TRANSFEROR TO
IMPEDE THE ASSESSMENT OR COLLECTION OF TAX. NOTWITHSTANDING THE REGISTRATION IN
THE CERTIFICATE REGISTER OF ANY TRANSFER, SALE OR OTHER DISPOSITION OF THIS
CLASS R-III CERTIFICATE TO A DISQUALIFIED ORGANIZATION OR A NONUNITED STATES
PERSON OR AN AGENT OF A DISQUALIFIED ORGANIZATION OR A NON-UNITED STATES PERSON,
OR TO ANY OTHER PROHIBITED TRANSFEREE AS PROVIDED IN THE POOLING AND SERVICING
AGREEMENT, 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, INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OF DISTRIBUTIONS
ON THIS CERTIFICATE. EACH HOLDER OF A CLASS R-III CERTIFICATE BY ACCEPTANCE OF
THIS CERTIFICATE SHALL BE DEEMED TO HAVE CONSENTED TO THE PROVISIONS OF THIS
PARAGRAPH.
A-15-2
<PAGE>
MORGAN STANLEY CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1998-HF1
PERCENTAGE INTEREST OF THIS MASTER SERVICER: AMRESCO SERVICES, L.P.
CLASS R-III CERTIFICATE: _____%
DATE OF POOLING & SERVICING INITIAL SPECIAL SERVICER: LENNAR
AGREEMENT: AS OF MARCH 1, 1998 PARTNERS, INC.
CUT-OFF DATE: MARCH 1, 1998 TRUSTEE: LASALLE NATIONAL BANK
CLOSING DATE: MARCH 27, 1998 FISCAL AGENT: ABN AMRO BANK N.V.
FIRST DISTRIBUTION DATE:
APRIL 15, 1998
NO. _________
CLASS R-III CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
MORGAN STANLEY CAPITAL I INC.
THIS CERTIFIES THAT _________________ is the registered owner of the interest
evidenced by this Certificate in the Class R-III Certificates issued by the
Trust created pursuant to the Pooling and Servicing Agreement, dated as
specified above (the "Pooling and Servicing Agreement"), among Morgan Stanley
Capital I Inc. (hereinafter called the "Depositor", which term includes any
successor entity under the Pooling and Servicing Agreement), the Trustee, the
Master Servicer, the Special Servicer and the Fiscal Agent, a summary of certain
of the pertinent provisions of which is set forth hereafter. The Trust consists
primarily of the Mortgage Loans, such amounts as shall from time to time be held
in the Collection Account, the Distribution Account, the Insurance Policies and
any REO Properties. To the extent not defined herein, the capitalized terms used
herein have the meanings assigned in the Pooling and Servicing Agreement.
The Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing the Percentage Interest in the Class
R-III Certificates specified on the face hereof. The Certificates are designated
as the Morgan Stanley Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 1998-HF1 and are issued in sixteen Classes as specifically
set forth in the Pooling and Servicing Agreement. The Certificates will evidence
in the aggregate 100% of the beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and Servicing
Agreement and reference is made to the Pooling and Servicing Agreement for
information with respect to the interests, rights, benefits, obligations,
proceeds, and duties evidenced hereby and the rights, duties and obligations of
the Trustee. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
A-15-3
<PAGE>
The Holder of this Certificate shall be entitled to receive only certain
amounts set forth in the Pooling and Servicing Agreement, including a
distribution upon termination of the Pooling and Servicing Agreement and the
related REMIC created thereby of the amounts which remain on deposit in the
Distribution Account after payment to the Holders of all other Certificates of
all amounts set forth in the Pooling and Servicing Agreement. Distributions on
this Certificate will be made out of the Available Distribution Amount, to the
extent and subject to the limitations set forth in the Pooling and Servicing
Agreement, on the 15th day of each month or, if such 15th day is not a Business
Day, the next succeeding Business Day (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"). All sums distributable on this Certificate are payable in the coin or
currency of the United States of America as at the time of payment is legal
tender for the payment of public and private debts.
Unless the certificate of authentication hereon has been executed by the
Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
Realized Losses and interest shortfalls on the Mortgage Loans shall be
allocated on the applicable Distribution Date to Certificateholders in the
manner set forth in the Pooling and Servicing Agreement. All Realized Losses and
interest shortfalls on the Mortgage Loans allocated to any Class of Certificates
will be allocated pro rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain collections and
recoveries respecting the Mortgage Loans, all as more specifically set forth in
the Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Collection Account shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust.
All distributions under the Pooling and Servicing Agreement to a nominee of
The Depository Trust Company ("DTC") will be made by or on behalf of the Trustee
by wire transfer in immediately available funds to an account specified in the
request of such Certificateholder. All distributions under the Pooling and
Servicing Agreement to Certificateholders will be made by wire transfer in
immediately available funds to the account specified by the Certificateholder,
at a bank or other entity having appropriate facilities therefor, if such
Certificateholder will have provided the Trustee with wiring instructions no
more than five business days after the related Record Date, or otherwise by
check mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the aggregate Certificate Principal Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. 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 the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
limited circumstances, without the consent of the Holders of any of the
Certificates.
As provided in the Pooling and Servicing 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 Corporate Trust Office of the Trustee, duly endorsed by, or
accompanied by an assignment in the form below or other written instrument of
transfer in form satisfactory to the Certificate Registrar duly executed by the
Holder hereof or such Holder's attorney duly authorized in writing, and
thereupon
A-15-4
<PAGE>
one or more new Certificates of the same Class in authorized denominations will
be issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the Class A
Certificates will initially be issued in denominations of $5,000 initial
Certificate Principal Balance and in any whole dollar denomination in excess
thereof. The Class X, Class B, Class C, Class D and Class E Certificates will
initially be issued in denominations of $50,000 initial Certificate Principal
Balance or Certificate Notional Amount, as applicable, and in any whole dollar
denomination in excess thereof. The Class F, Class G, Class H, Class J, Class K
and Class L Certificates will initially be issued in denominations of $100,000
initial Certificate Principal Balance or Certificate Notional Amount, as
applicable, and in any whole dollar denomination in excess thereof. Each Class
of Certificates other than the Residual Certificates will be represented by one
or more Certificates registered in the name of Cede & Co., as nominee of the
DTC. No Certificate Owner will be entitled to receive a Definitive Certificate
representing such interest, except under the limited circumstances described in
the Pooling and Servicing Agreement. The Residual Certificates will be issued in
fully registered, certificated form in minimum percentage interests of 10% and
in multiples of 10% in excess thereof.
As provided in the Pooling and Servicing Agreement and subject to certain
limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Trustee may require payment of a
sum sufficient to cover any tax or other governmental charge that may be imposed
in connection with any transfer or exchange of Certificates.
The Depositor, the Trustee, the Fiscal Agent, the Master Servicer, the
Special Servicer and the Certificate Registrar and any of their agents may treat
the Person in whose name this Certificate is registered as the owner hereof for
all purposes, and neither the Depositor, the Trustee, the Fiscal Agent, the
Master Servicer, the Special Servicer, the Certificate Registrar nor any such
agents shall be affected by notice to the contrary.
The obligations and responsibilities of the Trustee created hereby (other
than the obligation of the Trustee to make payments to the Certificateholders as
set forth in Section 10.2 of the Pooling and Servicing Agreement and other than
the obligations in the nature of information or tax reporting) shall terminate
on the earliest of (i) the later of (A) the final payment or other liquidation
of the last Mortgage Loan remaining in the Trust and (B) the disposition of all
REO Property or (ii) the sale of the property held by the Trust in accordance
with Section 10.1(b) of the Pooling and Servicing Agreement; provided that in no
event shall the Trust continue beyond the expiration of 21 years from the death
of the last survivor of the descendants of Joseph P. Kennedy, the late
Ambassador of the United States to the Court of St. James, living on the date
hereof. The parties designated in the Pooling and Servicing Agreement may
exercise their option to purchase the Mortgage Loans and any other property
remaining in the Trust and cause the termination of the Trust in accordance with
the requirements set forth in the Pooling and Servicing Agreement. Upon
termination of the Trust and payment of the Certificates and of all
administrative expenses associated with the Trust, any remaining assets of the
Trust shall be distributed to the holders of the Class R-I Certificates.
The Trustee has executed this Certificate on behalf of the Trust as Trustee
under the Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE CONSTRUED
IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK WITHOUT
REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
A-15-5
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed under this official seal.
LASALLE NATIONAL BANK,
as Trustee
By:
----------------------------
AUTHORIZED OFFICER
Dated:
A-15-6
<PAGE>
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS R-III CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE NATIONAL BANK,
as Authenticating Agent
BY:
----------------------------
AUTHORIZED SIGNATORY
A-15-7
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT . . . .Custodian
TEN ENT - as tenants by the (Cust)
entireties Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship
and not as tenants in Act.......................
common (State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto
- --------------------------------------------------------------------------------
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
- ----------------------------------------
| |
- ----------------------------------------
--------------------------------------
- --------------------------------------------------------------------------------
Please print or typewrite name and address of assignee
- --------------------------------------------------------------------------------
the within Certificate and does hereby or irrevocably constitute and appoint
- --------------------------------------------------------------------------------
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:_______________________________ _______________________________________
NOTICE: The signature to this
assignment must correspond with the
name as written upon the face of this
Certificate in every particular without
alteration or enlargement or any change
whatever.
- -------------------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by a
commercial bank or trust company or by a
member firm of the New York Stock
Exchange or another national securities
exchange. Notarized or witnessed
signatures are not acceptable.
A-15-8
<PAGE>
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to ____________ for the account of _________________________
account number _____________________ or, if mailed by check, to _______________.
Statements should be mailed to ______________________. This information is
provided by assignee named above, or ____________________________, as its agent.
A-15-9
<PAGE>
EXHIBIT A-16
[FORM OF CLASS X CERTIFICATE]
THIS CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN THE
DEPOSITOR, EITHER UNDERWRITER, THE TRUSTEE, THE FISCAL AGENT, THE MASTER
SERVICER, THE SPECIAL SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL
NOT BE INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
NOTWITHSTANDING THE ABOVE, IF THE TRANSFEREE OF THIS CERTIFICATE IS AN EMPLOYEE
BENEFIT PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED, OR SECTION 4975 OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED, OR ANY PERSON ACTING ON BEHALF OF ANY
SUCH PLAN OR USING THE ASSETS OF SUCH PLAN TO ACQUIRE OR HOLD THIS CERTIFICATE,
SUCH PLAN OR SUCH PERSON MUST BE AN "ACCREDITED INVESTOR" WITHIN THE MEANING OF
RULE 501(A)(1), (2), (3) OR (7) OF REGULATION D OF THE UNITED STATES SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT").
THE PORTION OF THE CERTIFICATE NOTIONAL AMOUNT OF THE CERTIFICATES EVIDENCED BY
THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL PAYMENTS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE MORTGAGE LOANS ALLOCABLE TO
THE CERTIFICATE NOTIONAL AMOUNT OF THIS CLASS X CERTIFICATE. ACCORDINGLY, THE
CERTIFICATE NOTIONAL AMOUNT OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH
BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE
NOTIONAL AMOUNT BY INQUIRY OF THE TRUSTEE.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS AN INVESTMENT
UNIT COMPRISED OF TWELVE COMPONENT INTERESTS, EACH OF WHICH IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON 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-16-1
<PAGE>
MORGAN STANLEY CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1998-HF1
INITIAL PASS-THROUGH RATE: 1.22% INITIAL CERTIFICATE NOTIONAL
AMOUNT OF THIS CLASS X CERTIFICATE:
$1,283,705,560
DATE OF POOLING & SERVICING MASTER SERVICER: AMRESCO SERVICES, L.P.
AGREEMENT: AS OF MARCH 1, 1998
CUT-OFF DATE: MARCH 1, 1998 INITIAL SPECIAL SERVICER:
LENNAR PARTNERS, INC.
CLOSING DATE: MARCH 27, 1998 TRUSTEE: LASALLE NATIONAL BANK
FIRST DISTRIBUTION DATE: FISCAL AGENT: ABN AMRO BANK N.V.
APRIL 15, 1998
AGGREGATE CERTIFICATE NOTIONAL CUSIP NO. 61745MFH1
AMOUNT OF THE CLASS X CERTIFICATES
AS OF THE CLOSING DATE:
$1,283,705,560 NO. 1
CLASS X CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
MORGAN STANLEY CAPITAL I INC.
THIS CERTIFIES THAT _________________ is the registered owner of the interest
evidenced by this Certificate in the Class X Certificates issued by the Trust
created pursuant to the Pooling and Servicing Agreement, dated as specified
above (the "Pooling and Servicing Agreement"), among Morgan Stanley Capital I
Inc. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Master
Servicer, the Special Servicer and the Fiscal Agent, a summary of certain of the
pertinent provisions of which is set forth hereafter. The Trust consists
primarily of the Mortgage Loans, such amounts as shall from time to time be held
in the Collection Account, the Distribution Account, the Insurance Policies and
any REO Properties. To the extent not defined herein, the capitalized terms used
herein have the meanings assigned in the Pooling and Servicing Agreement.
The Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Notional Amount of this
Certificate specified on the face hereof by the initial aggregate Certificate
Notional Amount of the Class X Certificates. The Certificates are designated as
the Morgan Stanley Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 1996-HF1 and are issued in sixteen Classes as specifically
set forth in the Pooling and Servicing Agreement. The Certificates will evidence
in the aggregate 100% of the beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and Servicing
Agreement and reference is made to the Pooling and Servicing Agreement for
information with respect to the interests, rights, benefits,
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obligations, proceeds, and duties evidenced hereby and the rights, duties and
obligations of the Trustee. This Certificate is issued under and is subject to
the terms, provisions and conditions of the Pooling and Servicing Agreement, to
which Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
Distributions of interest on this Certificate will be made out of the
Available Distribution Amount, to the extent and subject to the limitations set
forth in the Pooling and Servicing Agreement, on the 15th day of each month or,
if such 15th day is not a Business Day, the next succeeding Business Day (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"). All sums distributable on this
Certificate are payable in the coin or currency of the United States of America
as at the time of payment is legal tender for the payment of public and private
debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at a Pass-Through Rate
calculated as specified in the Pooling and Servicing Agreement on the
Certificate Notional Amount of this Certificate immediately prior to each
Distribution Date. Interest allocated to this Certificate on any Distribution
Date will be in an amount due to this Certificate's pro rata share of the amount
to be distributed on the Certificates of this Class as of such Distribution
Date, with a final distribution to be made upon retirement of this Certificate
as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by the
Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
Realized Losses and interest shortfalls on the Mortgage Loans shall be
allocated on the applicable Distribution Date to Certificateholders in the
manner set forth in the Pooling and Servicing Agreement. All Realized Losses and
interest shortfalls on the Mortgage Loans allocated to any Class of Certificates
will be allocated pro rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain collections and
recoveries respecting the Mortgage Loans, all as more specifically set forth in
the Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Collection Account shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust.
All distributions under the Pooling and Servicing Agreement to a nominee of
The Depository Trust Company ("DTC") will be made by or on behalf of the Trustee
by wire transfer in immediately available funds to an account specified in the
request of such Certificateholder. All distributions under the Pooling and
Servicing Agreement to Certificateholders will be made by wire transfer in
immediately available funds to the account specified by the Certificateholder,
at a bank or other entity having appropriate facilities therefor, if such
Certificateholder will have provided the Trustee with wiring instructions no
more than five business days after the related Record Date, or otherwise by
check mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of
A-16-3
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the aggregate Certificate Principal Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. 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 the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
limited circumstances, without the consent of the Holders of any of the
Certificates.
As provided in the Pooling and Servicing 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 Corporate Trust Office of the Trustee, duly endorsed by, or
accompanied by an assignment in the form below or other written instrument of
transfer in form satisfactory to the Certificate Registrar duly executed by the
Holder hereof or such Holder's attorney duly authorized in writing, and
thereupon one or more new Certificates of the same Class in authorized
denominations will be issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the Class A
Certificates will initially be issued in denominations of $5,000 initial
Certificate Principal Balance and in any whole dollar denomination in excess
thereof. The Class X, Class B, Class C, Class D and Class E Certificates will
initially be issued in denominations of $50,000 initial Certificate Principal
Balance or Certificate Notional Amount, as applicable, and in any whole dollar
denomination in excess thereof. The Class F, Class G, Class H, Class J, Class K
and Class L Certificates will initially be issued in denominations of $100,000
initial Certificate Principal Balance or Certificate Notional Amount, as
applicable, and in any whole dollar denomination in excess thereof. Each Class
of Certificates other than the Residual Certificates will be represented by one
or more Certificates registered in the name of Cede & Co., as nominee of the
DTC. No Certificate Owner will be entitled to receive a Definitive Certificate
representing such interest, except under the limited circumstances described in
the Pooling and Servicing Agreement. The Residual Certificates will be issued in
fully registered, certificated form in minimum percentage interests of 10% and
in multiples of 10% in excess thereof.
As provided in the Pooling and Servicing Agreement and subject to certain
limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Trustee may require payment of a
sum sufficient to cover any tax or other governmental charge that may be imposed
in connection with any transfer or exchange of Certificates.
The Depositor, the Trustee, the Fiscal Agent, the Master Servicer, the
Special Servicer and the Certificate Registrar and any of their agents may treat
the Person in whose name this Certificate is registered as the owner hereof for
all purposes, and neither the Depositor, the Trustee, the Fiscal Agent, the
Master Servicer, the Special Servicer, the Certificate Registrar nor any such
agents shall be affected by notice to the contrary.
The obligations and responsibilities of the Trustee created hereby (other
than the obligation of the Trustee to make payments to the Certificateholders as
set forth in Section 10.2 of the Pooling and Servicing Agreement and other than
the obligations in the nature of information or tax reporting) shall terminate
on the earliest of (i) the later of (A) the final payment or other liquidation
of the last Mortgage Loan remaining in the Trust and (B) the disposition of all
REO Property or (ii) the sale of the property held by the Trust in accordance
with Section 10.1(b) of the Pooling and Servicing Agreement; provided that in no
event shall the Trust continue beyond the expiration of 21 years from the death
of the last survivor of the descendants of Joseph P. Kennedy, the late
Ambassador of the United States to the Court of St. James, living on the date
hereof. The parties designated in the Pooling and Servicing Agreement may
exercise their option to purchase the Mortgage Loans and any other property
remaining in the Trust and cause the termination of the Trust in accordance with
the requirements set forth in the Pooling and Servicing Agreement. Upon
termination of the Trust and payment of the Certificates and of all
administrative expenses associated with the Trust, any remaining assets of the
Trust shall be distributed to the holders of the Class R-I Certificates.
A-16-4
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The Trustee has executed this Certificate on behalf of the Trust as Trustee
under the Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE CONSTRUED
IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK WITHOUT
REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
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IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed under this official seal.
LASALLE NATIONAL BANK,
as Trustee
By:
----------------------------
AUTHORIZED OFFICER
Dated:
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CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS X CERTIFICATES REFERRED TO IN THE WITHIN-MENTIONED
POOLING AND SERVICING AGREEMENT.
LASALLE NATIONAL BANK,
as Authenticating Agent
BY:
----------------------------
AUTHORIZED SIGNATORY
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ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT . . . .Custodian
TEN ENT - as tenants by the (Cust)
entireties Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship
and not as tenants in Act.......................
common (State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto
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PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
- ----------------------------------------
| |
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--------------------------------------
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Please print or typewrite name and address of assignee
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the within Certificate and does hereby or irrevocably constitute and appoint
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to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:_______________________________ _______________________________________
NOTICE: The signature to this
assignment must correspond with the
name as written upon the face of this
Certificate in every particular without
alteration or enlargement or any change
whatever.
- -------------------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by a
commercial bank or trust company or by a
member firm of the New York Stock
Exchange or another national securities
exchange. Notarized or witnessed
signatures are not acceptable.
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DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to ____________ for the account of ____________________ account
number _____________________ or, if mailed by check, to ______________.
Statements should be mailed to ______________________. This information is
provided by assignee named above, or ____________________________, as its agent.
A-16-9
<PAGE>
EXHIBIT B-1
FORM OF INITIAL CERTIFICATION OF TRUSTEE
March __, 1998
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 1998-HF1
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
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". 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
March __, 1998
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 1998-HF1
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 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 (d) 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 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.
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-2-1
<PAGE>
EXHIBIT C
FORM OF REQUEST FOR RELEASE
To: LaSalle National Bank, Trustee
135 South LaSalle Street
Suite 1625
Chicago, Illinois 60674-4107
Attn: Asset-Backed Securities Trust Services Group -
Morgan Stanley Series 1998-HF1
Re: Morgan Stanley Capital I Inc., Commercial
Morgan Pass-Through Certificates, Series 1998-HF1
Date: March __, 1998
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, 1998, by
and among Morgan Stanley Capital I Inc., as Depositor, AMRESCO Services, L.P.,
as Master Servicer, Lennar Partners, Inc., as 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 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.)
____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 Mortgage File pursuant to
the Pooling and Servicing Agreement.)
____4. The Mortgage Loan is being foreclosed.
____5. Other. (Describe)
C-1
<PAGE>
The undersigned acknowledges that the above 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 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
FORM OF PURCHASER'S LETTER
[Date]
LaSalle National Bank, as Trustee
135 South LaSalle Street
Suite 1625
Chicago, Illinois 60674-4107
Attention: Asset-Backed Securities Trust Services Group -
Morgan Stanley Series 1998 - HF1
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
Re: Morgan Stanley Capital I Inc., Commercial Mortgage
Pass-Through Certificates, Series 1998-HF1
Dear Sirs:
In connection with our proposed purchase of $__________ initial
principal amount of Morgan Stanley Capital I Inc. Commercial Mortgage
Pass-Through Certificates, Series 1998-HF1, Class ___ (the "Certificates"), we
confirm that:
(1) We have received a copy of the Private Placement Memorandum dated
March __, 1998 relating to the Certificates (the "Memorandum"), and we
understand that the Memorandum speaks only as of its date and that the
information contained therein may not be correct or complete as of any
time subsequent to such date. We further understand that the
Certificates have not been, and will not be, registered under the
Securities Act of 1933, as amended (the "Securities Act"), and may not
be sold except as permitted in the following sentence. We agree, on
our own behalf and on behalf of any accounts for which we are acting
as hereinafter stated, that if we should sell any Certificates within
two years of the later of the date of original issuance of the
Certificates or the last day on which such Certificates are owned by
Morgan Stanley Capital I Inc. (the "Depositor") or any affiliate of
the Depositor we will do so only (A) to the Depositor, (B) to
"qualified institutional buyers" (within the meaning of Rule 144A
under the Securities Act) ("QIBs") in accordance with Rule 144A under
the Securities Act, (C) pursuant to the exemption from registration
provided by Rule 144 under the Securities Act (if available), or (D)
to an institutional "accredited investor" within the meaning of Rule
501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act
that is not a QIB (an "Institutional Accredited Investor") which,
prior to such sale, delivers to the Trustee under the Pooling and
Servicing Agreement described in the Memorandum, a signed letter
substantially in the form of this letter; and we further agree, in the
capacities stated above, to provide to any person purchasing any of
the Certificates from us a notice advising such purchaser that resales
of the Certificates are restricted as stated herein.
(2) We understand that, on any proposed resale of any Certificates to an
Institutional Accredited Investor, we and such Institutional
Accredited Investor will be required to furnish to the Trustee and the
Depositor such certifications, legal opinions and other information as
either of them may reasonably require to confirm that the proposed
sale is being made pursuant to an exemption from, or in a transaction
not subject to, the registration requirements of the Securities Act.
We further understand that the Certificates purchased by us will bear
a legend to the foregoing effect.
D-1
<PAGE>
(3) We are either / / an Institutional Accredited Investor or / / a QIB
[please check the appropriate box]. We are acquiring the Certificates
for investment purposes and not with a view to, or for offer or sale
in connection with, any distribution in violation of the Securities
Act. We have such knowledge and experience in financial and business
matters as to be capable of evaluating the merits and risks of our
investment in the Certificates, and we and any account for which we
are acting are each able to bear the economic risk of such investment.
(4) We are acquiring the Certificates purchased by us for our own account
or for one or more accounts (each of which is an Institutional
Accredited Investor or a QIB) as to each of which we exercise sole
investment discretion and are authorized to make the representations,
and enter into the agreements, contained herein.
(5) We have received such information as we deem necessary in order to
make our investment decision.
(6) If we are acquiring Senior Certificates, we understand that, in
accordance with the prohibited transaction rules of ERISA and Section
4975 of the Code and the terms of the Exemption as described in the
Memorandum under "ERISA Considerations," no Plan as to which the
Initial Purchaser, the Depositor, the Master Servicer, the Special
Servicer, the Fiscal Agent, the Operating Adviser or the Trustee is a
party in interest or disqualified person, and no QIB acting on behalf
of or with "plan assets" of any such Plan, may acquire such
Certificates unless pursuant to a statutory exemption or any of the
administrative exemptions issued by the U.S. Department of Labor, such
that the acquisition and holding of Senior Certificates by, on behalf
of or with "plan assets" of such Plan would not constitute or result
in a non-exempt prohibited transaction under ERISA or Section 4975 of
the Code by reason of the application of one or more of the statutory
or administrative exemptions from the prohibited transaction rules
described in the Memorandum.
(7) If we are acquiring Subordinate Certificates, either (i) we are not a
Plan and are not using "plan assets" of any Plan to acquire such
Certificates, or (ii) we are an insurance company investing solely
assets of our general account and we hereby certify that our purchase
and holding of such Certificates will not result in a non-exempt
prohibited transaction under ERISA or Section 4975 of the Code.
Terms used in this letter which are not otherwise defined herein have the
respective meanings assigned thereto in the Memorandum.
D-2
<PAGE>
You and the Depositor are entitled to rely upon this letter and are irrevocably
authorized to produce this letter or a copy hereof to any interested party in
any administrative or legal proceeding or official inquiry with respect to the
matters covered hereby.
Very truly yours,
By:
------------------------------
Name:
----------------------------
Title:
---------------------------
Certificates to be purchased:
$__________ original Certificate Principal
Balance of Class ____ Certificates.
D-3
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EXHIBIT E
FORM OF TRANSFEROR CERTIFICATE FOR TRANSFERS OF
REMIC RESIDUAL CERTIFICATES
[Date]
LaSalle National Bank,
as Certificate Registrar
135 South LaSalle Street
Suite 1625
Chicago, Illinois 60674-4107
Attention: Asset-Backed Securities Trust Services Group -
Morgan Stanley Series 1998 - HF1
Re: Morgan Stanley Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 1998-HF1 (the "Certificates")
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
________________ (the "Transferor") to __________________ (the "Transferee") of
[Class R-I] [Class R-II] [Class R-III] Certificates evidencing a ____%
Percentage Interest in such Class (the "Residual Certificates"). The
Certificates, including the Residual Certificates, were issued pursuant to the
Pooling and Servicing Agreement, dated as of March 1, 1998 (the "Pooling and
Servicing Agreement"), among Morgan Stanley Capital I Inc., as depositor,
AMRESCO Services, L.P., as master servicer, Lennar Partners, Inc., 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 as Exhibit F. The Transferor does not know or believe that
any representation contained therein is false.
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,
E-1
<PAGE>
------------------------------
(Transferor)
By:
---------------------------
Name:
-------------------------
Title:
------------------------
E-2
<PAGE>
EXHIBIT F
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.,
Commercial Mortgage Pass-Through Certificates, Series 1998-HF1, 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 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
F-1
<PAGE>
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(f) of the
Pooling and Servicing Agreement, a description of which provisions is set forth
in the Residual Certificates (in particular, clause (iv)(A) of Section 3.3(f)
which authorizes the Trustee to deliver payments on the Residual Certificate to
a Person other than the Transferee and clause (iv)(B) of Section 3.3(f) 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(f)); 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 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
reasonable investigation of the financial condition of the proposed transferee
as contemplated by Treasury regulation Section 1.860E-l(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 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.
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 _______________, 199_.
[NAME OF TRANSFEREE]
By:_____________________________
F-2
<PAGE>
[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 __________________, 199_.
_________________________________
NOTARY PUBLIC
COUNTY OF _______________________
STATE OF ________________________
My Commission expires the______
day of ___________, 19___.
F-3
<PAGE>
EXHIBIT G-1
FORM OF MONTHLY CERTIFICATEHOLDER REPORT
G-1-1
<PAGE>
<TABLE>
<CAPTION>
ABN AMRO Morgan Stanley Capital I Inc., as Depositor Statement Date: 04/15/98
LaSalle National Bank Heller Financial Capital Funding Inc. and Payment Date: 04/15/98
Morgan Stanley Mortgage Capital Inc., as Mortgage Loan Sellers Prior Payment: NA
Commercial Mortgage Pass-Through Certificates Record Date: 03/31/98
Administrator: Series 1998-HF1
Robert Castle (800)246-5761 ABN AMRO Acct: 99-9999-99-9 WAC:
135 S. LaSalle Street Suite 1740 WAMM:
Chicago, IL 60603
====================================================================================================================================
<S> <C>
Number Of Pages
---------------
Table Of Contents
Total Pages Included In This Package
Specially Serviced Loan Detail Appendix A
Modified Loan Detail Appendix B
Realized Loss Detail Appendix C
============================================================================
Information is available for this issue from the following sources
----------------------------------------------------------------------------
LaSalle Web Site www.Inbabs.com
Servicer Website www.servicer.com
LaSalle Bulletin Board (714)282-3990
LaSalle ASAP Fax System (312)904-2200
Bloomberg User Terminal
ASAP #: 777
Monthly Data File Name: 0777MMYY.EXE
============================================================================
====================================================================================================================================
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
ABN AMRO Morgan Stanley Capital I Inc., as Depositor Statement Date: 04/15/98
LaSalle National Bank Heller Financial Capital Funding Inc. and Payment Date: 04/15/98
Morgan Stanley Mortgage Capital Inc., as Mortgage Loan Sellers Prior Payment: NA
Commercial Mortgage Pass-Through Certificates Record Date: 03/31/98
Administrator: Series 1998-HF1
Robert Castle (800)246-5761 ABN AMRO Acct: 99-9999-99-9 WAC:
135 S. LaSalle Street Suite 1740 WAMM:
Chicago, IL 60603
====================================================================================================================================
Original Opening Principal Principal Negative Closing Interest Interest Pass-Through
Class Face Value(1) Balance Payment Adj. or Loss Amortization Balance Payment Adjustment Rate(2)
CUSIP Per $1,000 Per $1,000 Per $1,000 Per $1,000 Per $1,000 Per $1,000 Per $1,000 Per $1,000 Next Rate(3)
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
====================================================================================================================================
Total P&I Payment 0.00
=========================
</TABLE>
Notes: (1) N denotes notional balance not included in total
(2) Interest Paid minus Interest Adjustment minus Deferred Interest
equals Accrual
(3) Estimated
<PAGE>
<TABLE>
<CAPTION>
ABN AMRO Morgan Stanley Capital I Inc., as Depositor Statement Date: 04/15/98
LaSalle National Bank Heller Financial Capital Funding Inc. and Payment Date: 04/15/98
Morgan Stanley Mortgage Capital Inc., as Mortgage Loan Sellers Prior Payment: NA
Commercial Mortgage Pass-Through Certificates Record Date: 03/31/98
Administrator: Series 1998-HF1
Robert Castle (800)246-5761 ABN AMRO Acct: 99-9999-99-9 WAC:
135 S. LaSalle Street Suite 1625 Other Related Information WAMM:
Chicago, IL 60674-4107
====================================================================================================================================
-----------------------------------------------------------------------------------------------------------------------
Servicer/Pool Information
Beginning Scheduled Unscheduled Realized Ending Scheduled Prepayment Interest
Balance Principal Principal Losses Balance Interest Shortfall Excess
-----------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
----------------------------------------------------------------------------------------
Beginning Ending Gross W/Avg Months Prepayment Disposition
Loan Count Loan Count Servicing Fees to Maturity Penalties Fees
----------------------------------------------------------------------------------------
--------------------------------------------------------
Current Cumulative
Unpaid Unpaid
Class Interest Interest
--------------------------------------------------------
--------------------------------------------------------
Total
--------------------------------------------------------
====================================================================================================================================
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
ABN AMRO Morgan Stanley Capital I Inc., as Depositor Statement Date: 04/15/98
LaSalle National Bank Heller Financial Capital Funding Inc. and Payment Date: 04/15/98
Morgan Stanley Mortgage Capital Inc., as Mortgage Loan Sellers Prior Payment: NA
Commercial Mortgage Pass-Through Certificates Record Date: 03/31/98
Administrator: Series 1998-HF1
Robert Castle (800)246-5761 ABN AMRO Acct: 99-9999-99-9
135 S. LaSalle Street Suite 1625 Other Related Information
Chicago, IL 60674-4107
====================================================================================================================================
-----------------------------------------------------------------------------
P&I Advances made by: Beginning Current Ending
Unreimbursed Period Reimbursed Unreimbursed
-----------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Servicer
Trustee
Fiscal Agent
-----------------------------------------------------------------------------
Total P&I Advances
-----------------------------------------------------------------------------
Summary of Expenses:
Current Period Servicing Fees
Current Period Trustee Fees
Current Period Special Servicing Fees
Principal Recovery Fees
Other Servicing Compensation - Interest on Advances
Total
Net Aggregate PPIS Allocable to the Bonds
Trust Fund Expenses
Current Realized Losses on Mortgage Loans
Cumulative Realized Losses on Mortgage Loans
====================================================================================================================================
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
ABN AMRO Morgan Stanley Capital I Inc., as Depositor Statement Date: 04/15/98
LaSalle National Bank Heller Financial Capital Funding Inc. and Payment Date: 04/15/98
Morgan Stanley Mortgage Capital Inc., as Mortgage Loan Sellers Prior Payment: NA
Commercial Mortgage Pass-Through Certificates Record Date: 03/31/98
Administrator: Series 1998-HF1
Robert Castle (800)246-5761 ABN AMRO Acct: 99-9999-99-9
135 S. LaSalle Street Suite 1625 Other Related Information
Chicago, IL 60674-4107
====================================================================================================================================
------------------------------------------------------------------------------------------
REO Property sold or disposed of during the related Collection Period
Portion Final
Realized Included in Recovery
Loan Loss Sale Other Available Determination
Number Attributable Proceeds Proceeds Funds Date
------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
1
2
3
==========================================================================================
Totals
==========================================================================================
<CAPTION>
------------------------------------------------------------------------------------------
REO Property included in the Trust
Most Aggregate Aggregate Portion
Recent Amount Amount Included in
Loan Appraisal of Net of Other Available
Number Valuation Income Revenues Funds
------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
1
2
3
==========================================================================================
Totals
==========================================================================================
====================================================================================================================================
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
ABN AMRO Morgan Stanley Capital I Inc., as Depositor Statement Date: 04/15/98
LaSalle National Bank Heller Financial Capital Funding Inc. and Payment Date: 04/15/98
Morgan Stanley Mortgage Capital Inc., as Mortgage Loan Sellers Prior Payment: NA
Commercial Mortgage Pass-Through Certificates Record Date: 03/31/98
Administrator: Series 1998-HF1
Robert Castle (800)246-5761 ABN AMRO Acct: 99-9999-99-9
135 S. LaSalle Street Suite 1625 Other Related Information
Chicago, IL 60674-4107
====================================================================================================================================
---------------------------------------------------------------------------------------------------------
Mortgaged Properties that became REO during the preceding calendar month
Unpaid
Debt Principal
Service Stated Balance
Loan Property Coverage Principal as of REO
Number City State Type Ratio Balance Date
----------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
----------------------------------------------------------------------------------------------------------
Totals
----------------------------------------------------------------------------------------------------------
<CAPTION>
---------------------------------------------------------------------------------------
Appraisal Reduction Amounts
Loan Current Total
Number Period Reduction
---------------------------------------------------------------------------------------
<S> <C> <C>
1
2
3
---------------------------------------------------------------------------------------
Totals 0.00
---------------------------------------------------------------------------------------
====================================================================================================================================
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
ABN AMRO Morgan Stanley Capital I Inc., as Depositor Statement Date: 04/15/98
LaSalle National Bank Heller Financial Capital Funding Inc. and Payment Date: 04/15/98
Morgan Stanley Mortgage Capital Inc., as Mortgage Loan Sellers Prior Payment: NA
Commercial Mortgage Pass-Through Certificates Record Date: 03/31/98
Administrator: Series 1998-HF1
Robert Castle (800)246-5761 ABN AMRO Acct: 99-9999-99-9
135 S. LaSalle Street Suite 1740
Chicago, IL 60603
====================================================================================================================================
Distribution Delinq 1 Month Delinq 2 Months Delinq 3+ Months Foreclosure/Bankruptcy REO
---------------------------------------------------------------------------------------------------------------
Date # Balance # Balance # Balance # Balance # Balance
====================================================================================================================================
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
04/15/98 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
0.00% 0.000% 0.00% 0.000%
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
===============================================================================
Note: Foreclosure and REO Totals are Included in the Appropriate Delinquency Aging Category
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
ABN AMRO Morgan Stanley Capital I Inc., as Depositor Statement Date: 04/15/98
LaSalle National Bank Heller Financial Capital Funding Inc. and Payment Date: 04/15/98
Morgan Stanley Mortgage Capital Inc., as Mortgage Loan Sellers Prior Payment: NA
Commercial Mortgage Pass-Through Certificates Record Date: 03/31/98
Administrator: Series 1998-HF1
Robert Castle (800)246-5761 ABN AMRO Acct: 99-9999-99-9
135 S. LaSalle Street Suite 1740
Chicago, IL 60603
Delinquent Loan Detail
====================================================================================================================================
Paid Outstanding Out. Property
Disclosure Thru Current P&I P&I Protection Advance
Control # Date Advance Advances** Advances Description(1)
====================================================================================================================================
<S> <C> <C> <C> <C> <C>
====================================================================================================================================
A. P&I Advance - Loan in Grace Period 1. P&I Advance - Loan delinquent 1 month
B. P&I Advance - Late Payment but < one month delinq 2. P&I Advance - Loan delinquent 2 months
====================================================================================================================================
** Outstanding P&I Advances include the current period P&I advance
<CAPTION>
================================================================================
Special
Servicer Foreclosure Bankruptcy REO
Transfer Date Date Date Date
================================================================================
<S> <C> <C> <C>
================================================================================
3. P&I Advance - Loan delinquent 3 months or More
4. Matured Balloon/Assumed Scheduled Payment
================================================================================
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C> <C>
ABN AMRO Morgan Stanley Capital I Inc., as Depositor Statement Date: 04/15/98
LaSalle National Bank Heller Financial Capital Funding Inc. and Payment Date: 04/15/98
Morgan Stanley Mortgage Capital Inc., as Mortgage Loan Sellers Prior Payment: NA
Commercial Mortgage Pass-Through Certificates Record Date: 03/31/98
Administrator: Series 1998-HF1
Robert Castle (800)246-5761 ABN AMRO Acct: 99-9999-99-9
135 S. LaSalle Street Suite 1740 Pool Total
Chicago, IL 60603
</TABLE>
Distribution of Principal Balances
- -------------------------------- -----------------------------------------------
(2)Current Scheduled Number (2)Scheduled Based on
Balances of Loans Balance Balance
================================ ===============================================
$ 0 to $ 500,000
$ 500,000 to $ 1,000,000
$ 1,000,000 to $ 1,500,000
$ 1,500,000 to $ 2,000,000
$ 2,000,000 to $ 2,500,000
$ 2,500,000 to $ 3,000,000
$ 3,000,000 to $ 3,500,000
$ 3,500,000 to $ 4,000,000
$ 4,000,000 to $ 5,000,000
$ 5,000,000 to $ 6,000,000
$ 6,000,000 to $ 7,000,000
$ 7,000,000 to $ 8,000,000
$ 8,000,000 to $ 9,000,000
$ 9,000,000 to $10,000,000
$10,000,000 to $11,000,000
$11,000,000 to $12,000,000
$12,000,000 to $13,000,000
$13,000,000 to $14,000,000
$14,000,000 to $15,000,000
$15,000,000 & Above
================================ ===============================================
Total 0 0 0.00%
- -------------------------------- -----------------------------------------------
Average Scheduled Balance is 0
Maximum Scheduled Balance is 0
Minimum Scheduled Balance is 0
Distribution of Property Types
- ------------------------- ------------------------------------------------------
Number (2)Scheduled Based on
Property Types of Loans Balance Balance
========================= ======================================================
========================= ======================================================
Total 0 0 0.00%
- ------------------------- ------------------------------------------------------
Distribution of Mortgage Interest Rates
- -------------------------- -----------------------------------------------------
Current Mortgage Number (2)Scheduled Based on
Interest Rate of Loans Balance Balance
========================== =====================================================
7.000% or less
7.000% to 7.125%
7.125% to 7.375%
7.375% to 7.625%
7.625% to 7.875%
7.875% to 8.125%
8.125% to 8.375%
8.375% to 8.625%
8.625% to 8.875%
8.875% to 9.125%
9.125% to 9.375%
9.375% to 9.625%
9.625% to 9.875%
9.875% to 10.125%
10.125% & Above
========================== =====================================================
Total 0 0 0.00%
- -------------------------- -----------------------------------------------------
W/Avg Mortgage Interest Rate is 0.0000%
Minimum Mortgage Interest Rate is 0.0000%
Maximum Mortgage Interest Rate is 0.0000%
Geographic Distribution
- -------------------------- -----------------------------------------------------
Number (2)Scheduled Based on
Geographic Location of Loans Balance Balance
========================== =====================================================
========================== =====================================================
Total 0 0 0.00%
- -------------------------- -----------------------------------------------------
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C> <C>
ABN AMRO Morgan Stanley Capital I Inc., as Depositor Statement Date: 04/15/98
LaSalle National Bank Heller Financial Capital Funding Inc. and Payment Date: 04/15/98
Morgan Stanley Mortgage Capital Inc., as Mortgage Loan Sellers Prior Payment: NA
Commercial Mortgage Pass-Through Certificates Record Date: 03/31/98
Administrator: Series 1998-HF1
Robert Castle (800)246-5761 ABN AMRO Acct: 99-9999-99-9
135 S. LaSalle Street Suite 1740 Pool Total
Chicago, IL 60603
</TABLE>
Loan Seasoning
- -------------------------- -----------------------------------------------------
Number (2)Scheduled Based on
Number of Years of Loans Balance Balance
========================== =====================================================
========================== =====================================================
- -------------------------- -----------------------------------------------------
Weighted Average Seasoning is 0.0
Distribution of Amortization Type
- -------------------------- -----------------------------------------------------
Number (2)Scheduled Based on
Amortization Type of Loans Balance Balance
========================== =====================================================
========================== =====================================================
Total 0 0 0.00%
- -------------------------- -----------------------------------------------------
Distribution of Remaining Term
Fully Amortizing
- -------------------------- -----------------------------------------------------
Fully Amortizing Number (2)Scheduled Based on
Mortgage Loans of Loans Balance Balance
========================== =====================================================
60 months or less
61 to 120 months
121 to 180 months
181 to 240 months
241 to 360 months
========================== =====================================================
Total 0 0 0.00%
- -------------------------- -----------------------------------------------------
Weighted Average Months to Maturity is 0
Distribution of Remaining Term
Balloon Loans
- -------------------------- -----------------------------------------------------
Balloon Number (2)Scheduled Based on
Mortgage Loans of Loans Balance Balance
========================== =====================================================
12 months or less
13 to 24 months
25 to 36 months
37 to 48 months
49 to 60 months
61 to 120 months
121 to 180 months
181 to 240 months
========================== =====================================================
Total 0 0 0.00%
- -------------------------- -----------------------------------------------------
Weighted Average Months to Maturity is 0
Distribution of DSCR
- -------------------------- -----------------------------------------------------
Debt Service Number (2)Scheduled Based on
Coverage Ratio(1) of Loans Balance Balance
========================== =====================================================
0.500 or less
0.500 to 0.625
0.625 to 0.750
0.750 to 0.875
0.875 to 1.000
1.000 to 1.125
1.125 to 1.250
1.250 to 1.375
1.375 to 1.500
1.500 to 1.625
1.625 to 1.750
1.750 to 1.875
1.875 to 2.000
2.000 to 2.125
2.125 & Above
Unknown
========================== =====================================================
Total 0 0 0.00%
- -------------------------- -----------------------------------------------------
Weighted Average Debt Service Coverage is 0.000
NOI Aging
- -------------------------- -----------------------------------------------------
Number (2)Scheduled Based on
NOI Date of Loans Balance Balance
========================== =====================================================
1 year or less
1 to 2 years
2 Years or More
Unknown
========================== =====================================================
Total 0 0 0.00%
- -------------------------- -----------------------------------------------------
(1) Debt Service Coverage Ratios are calculated as described in the prospectus,
values are updated periodically as new NOI figures became available from
borrowers on an asset level.
Neither the Trustee, Servicer, Special Servicer or Underwriter makes any
representation as to the accuracy of the data by borrower for this
calulation.
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C> <C>
ABN AMRO Morgan Stanley Capital I Inc., as Depositor Statement Date: 04/15/98
LaSalle National Bank Heller Financial Capital Funding Inc. and Payment Date: 04/15/98
Morgan Stanley Mortgage Capital Inc., as Mortgage Loan Sellers Prior Payment: NA
Commercial Mortgage Pass-Through Certificates Record Date: 03/31/98
Administrator: Series 1998-HF1
Robert Castle (800)246-5761 ABN AMRO Acct: 99-9999-99-9
135 S. LaSalle Street Suite 1740 Pool Total
Chicago, IL 60603
</TABLE>
Distribution of Maximum Rates
- -------------------------- -----------------------------------------------------
Number (2)Scheduled Based on
Maximum Rates of Loans Balance Balance
========================== =====================================================
No Maximum
0.01% to 12.00%
12.01% to 12.50%
12.51% to 13.00%
13.01% to 13.50%
13.51% to 14.00%
14.01% to 14.50%
14.51% to 15.00%
15.01% to 15.50%
15.51% to 16.00%
16.01% to 16.50%
16.51% to 17.00%
17.01% to 17.50%
Fixed Rate Mortgage
========================== ====================================================
0 0 0.00%
- -------------------------- -----------------------------------------------------
Weighted Average for Mtge with a Maximum Rate is 13.49%
Distribution of Payment Adjustment
- -------------------------- -----------------------------------------------------
Interest Adjustment Number (2)Scheduled Based on
Frequency of Loans Balance Balance
========================== =====================================================
========================== ====================================================
Total 0 0 0.00%
- -------------------------- -----------------------------------------------------
Distribution of Indices of Mortgage Loans
- -------------------------- -----------------------------------------------------
Number (2)Scheduled Based on
Indices of Loans Balance Balance
========================== =====================================================
========================== ====================================================
Total 0 0 0.00%
- -------------------------- -----------------------------------------------------
Distribution of Mortgage Loan Margins
- -------------------------- -----------------------------------------------------
Number (2)Scheduled Based on
Minimum Rates(1) of Loans Balance Balance
========================== =====================================================
No Margin
0.000% to 0.000%
0.010% to 1.000%
1.010% to 1.500%
1.510% to 2.000%
2.010% to 2.500%
2.510% to 3.000%
3.010% to 3.500%
3.510% to 4.000%
4.010% to 4.500%
4.510% & Above
Fixed Rate Mortgage
========================== ====================================================
Total 0 0 0.00%
- -------------------------- -----------------------------------------------------
Weighted Average for Mtge with a Margin is 0.00%
Distribution of Minimum Rates
- -------------------------- -----------------------------------------------------
Number (2)Scheduled Based on
Minimum Rates(1) of Loans Balance Balance
========================== =====================================================
No Minimum
0.010% to 3.000%
3.010% to 3.500%
3.510% to 4.000%
4.010% to 4.500%
4.510% to 5.000%
5.010% to 5.500%
5.510% to 6.000%
6.010% to 6.500%
6.510% to 7.000%
7.010% to 7.500%
7.510% to 8.000%
8.010% to 8.500%
8.510% to 99.000%
Fixed Rate Mortgage
========================== ====================================================
0 0 0.00%
- -------------------------- -----------------------------------------------------
Weighted Average for Mtge with a Minimum Rate is 0.00%
Distribution of Interest Adjustment
- -------------------------- -----------------------------------------------------
Payment Adjustment Number (2)Scheduled Based on
Frequency Loans Balance Balance
========================== =====================================================
========================== ====================================================
0 0 0.00%
- -------------------------- -----------------------------------------------------
(1) For adjustable mortgage loans where a minimum rate does not exist the gross
margin was used.
<PAGE>
<TABLE>
<CAPTION>
ABN AMRO Morgan Stanley Capital I Inc., as Depositor Statement Date: 04/15/98
LaSalle National Bank Heller Financial Capital Funding Inc. and Payment Date: 04/15/98
Morgan Stanley Mortgage Capital Inc., as Mortgage Loan Sellers Prior Payment: NA
Commercial Mortgage Pass-Through Certificates Record Date: 03/31/98
Administrator: Series 1998-HF1
Robert Castle (800)246-5761 ABN AMRO Acct: 99-9999-99-9
135 S. LaSalle Street Suite 1740
Chicago, IL 60603
Loan Level Detail
====================================================================================================================================
Appraisal Property Operating Ending
Disclosure Reduction Type Maturity Statement Principal
Control # Amounts Code Date DSCR NOI Date Balance
====================================================================================================================================
<S> <C> <C> <C> <C> <C> <C> <C>
====================================================================================================================================
* NOI and DSCR, if available and reportable under the terms of the trust agreement, are based on information obtained from the
related borrower, and no other party to the agreement shall be held liable for the accuracy or methodology used to determine
such figures.
- ------------------------------------------------------------------------------------------------------------------------------------
(1) Legend: A: P&I adv - in Grace Period 1. P&I Adv - delinquent 1 month 3. P&I Adv - delinquent 3+ months
B: P&I Adv - < one month delinq 2. P&I Adv - delinquent 2 months 4. Mat. Balloon/ Assumed P&I
====================================================================================================================================
</TABLE>
================================================================================
Loan
Note Scheduled Prepayment Status
Rate P&I Prepayment Date Code(1)
================================================================================
================================================================================
5. Prepaid in Full 7. Foreclosure 9. REO 11. Modification
6. Specially Serviced 8. Bankruptcy 10. DPO
- --------------------------------------------------------------------------------
<PAGE>
<TABLE>
<CAPTION>
ABN AMRO Morgan Stanley Capital I Inc., as Depositor Statement Date: 04/15/98
LaSalle National Bank Heller Financial Capital Funding Inc. and Payment Date: 04/15/98
Morgan Stanley Mortgage Capital Inc., as Mortgage Loan Sellers Prior Payment: NA
Commercial Mortgage Pass-Through Certificates Record Date: 03/31/98
Administrator: Series 1998-HF1
Robert Castle (800)246-5761 ABN AMRO Acct: 99-9999-99-9
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
====================================================================================================================================
<S> <C> <C> <C> <C> <C> <C>
====================================================================================================================================
(1) Legend:
1) Request for waiver of Prepayment Penalty 4) Loan with Borrower Bankruptcy 7) Loans Paid Off
2) Payment default 5) Loan in Process of Foreclosure 8) Loans Returned to Master Servicer
3) Request for Loan Modification or Workout 6) Loan now REO Property
====================================================================================================================================
Appendix A
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
ABN AMRO Morgan Stanley Capital I Inc., as Depositor Statement Date: 04/15/98
LaSalle National Bank Heller Financial Capital Funding Inc. and Payment Date: 04/15/98
Morgan Stanley Mortgage Capital Inc., as Mortgage Loan Sellers Prior Payment: NA
Commercial Mortgage Pass-Through Certificates Record Date: 03/31/98
Administrator: Series 1998-HF1
Robert Castle (800)246-5761 ABN AMRO Acct: 99-9999-99-9
135 S. LaSalle Street Suite 1740
Chicago, IL 60603
Modified Loan Detail
================================= ==================================================================================================
Disclosure Modification Modification
Control # Detail Description
================================= ==================================================================================================
<S> <C> <C>
================================= ==================================================================================================
Appendix B
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
ABN AMRO Morgan Stanley Capital I Inc., as Depositor Statement Date: 04/15/98
LaSalle National Bank Heller Financial Capital Funding Inc. and Payment Date: 04/15/98
Morgan Stanley Mortgage Capital Inc., as Mortgage Loan Sellers Prior Payment: NA
Commercial Mortgage Pass-Through Certificates Record Date: 03/31/98
Administrator: Series 1998-HFI
Robert Castle (800)246-5761 ABN AMRO Acct: 99-9999-99-9
135 S. LaSalle Street Suite 1740
Chicago, IL 60603
Realized Loss Detail
====================================================================================================================================
Beginning Gross Proceeds Aggregate
Dist. Disclosure Appraisal Appraisal Scheduled Gross as a % of Liquidation
Date Control # Date Value Balance Proceeds Sched Principal Expenses*
====================================================================================================================================
<S> <C> <C> <C> <C> <C> <C> <C>
============== =====================================================================================================================
Current Total 0.00 0.00 0.00
Cumulative 0.00 0.00 0.00
============== =====================================================================================================================
==================================================================
Net Net Proceeds
Liquidation as a % of Realized
Proceeds Sched. Balance Loss
==================================================================
- -------------------------------------------------------------------
0.00 0.00
0.00 0.00
===================================================================
Appendix C
* Aggregate liquidation expenses also include outstanding P&I advances and unpaid servicing fees, unpaid trustee fees, etc.
</TABLE>
<PAGE>
EXHIBIT G-2
FORM OF SPECIALLY SERVICED ASSET REPORT
[To be provided by Servicer]
G-2-1
<PAGE>
Morgan Stanley Capital I, Inc., Commercial Mortgage Pass-Through Certificates
Series 1998-HF1
COMPARATIVE FINANCIAL STATUS REPORT
as of _______________________
<TABLE>
<CAPTION>
=============================================================================================
=============================================================================================
Last
Property
Inspect Scheduled Annual
Prospectus Date Loan Paid Thru Debt
ID City State yy/mm Balance Date Service
=============================================================================================
<S> <C> <C> <C> <C> <C> <C>
List all loans currently in deal with or without information largest to smallest loan
Total: $ $
=============================================================================================
<CAPTION>
====================================================================================================================================
Original Underwriting 2nd Preceding Annual Operating
Information Information
Basis Year as of ________ Normalized
====================================================================================================================================
Financial Financial
Info as of (1) Info as of (1)
Date % Total $ (2) Date % Total $ (2)
yy/mm Occ Revenue NOI DSCR yy/mm Occ Revenue NOI DSCR
====================================================================================================================================
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
WA $ $ WA WA $ $ WA
====================================================================================================================================
<CAPTION>
====================================================================================================================================
Preceding Annual Operating YTD or Trailing 12 Months
Information Financial Information
as of ________ Normalized as of ________ Normalized
====================================================================================================================================
Financial
Info as of (1) FS Start FS End
Date % Total $ (2) Date Date Total $ %
yy/mm Occ Revenue NOI DSCR yy/mm yy/mm Revenue NOI DSCR
====================================================================================================================================
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
WA $ $ WA WA $ $ WA
====================================================================================================================================
<CAPTION>
===================================
Net Charge(3)
Preceding & Basis
===================================
% Total (1)
Occ Revenue DSCR
===================================
<S> <C> <C>
WA $ WA
===================================
<CAPTION>
====================================================================================================================================
Received: Required
Financial Information: Loans Balance Loans Balance
# % $ % # % $ %
====================================================================================================================================
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Current Full Year:
Current Full Yr. received with DSCR<1:
Prior Full Year:
Prior Full Yr. received with DSCR<1:
Quarterly Financials:
====================================================================================================================================
</TABLE>
(1) NOI or Net Cash Flow (as applicable)
(2) DSCR calculated using NOI (or Net Cash Flow as applicable)/ Debt Service
(3) Net change should compare the latest year to the underwriting year
EXHIBIT H-1
<PAGE>
Morgan Stanley Capital I, Inc., Commercial Mortgage Pass-Through
Certificates Series 1998-HF-1
DELINQUENT LOAN STATUS REPORT
as of ___________________
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
S4 S55 S61 S57 S58 S62 or S6 P8 P7 P37 P39 P38
- ------------------------------------------------------------------------------------------------------------------------------------
(a) (b) (c) (d)
Short Name Sq Ft or Paid Scheduled Total P&I Total Other
Prospectus (When Property City State Units Thru Loan Advances Expenses Advances
ID Appropriate) Type Date Balance To Date To Date (Taxes &
Escrow)
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
90+ DAYS DELINQUENT
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
60 DAYS DELINQUENT
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
30 DAYS DELINQUENT
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
Current & at Special Servicer
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
P25 P10 P11 P58 P54 P55 P74
- ------------------------------------------------------------------------------------------------------------------------------------
(e)=a+b+c+d (f)
Current Current LTM
Total Monthly Interest Maturity LTM NOI LTM NOI DCSR Value Valuation
Exposure P&I Rate Date Date Date
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
90+ DAYS DELINQUENT
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
60 DAYS DELINQUENT
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
30 DAYS DELINQUENT
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
Current & at Special Servicer
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
<CAPTION>
- ----------------------------------------------------------------------------------------------------------------------------------
P75 P77 P79 P42 P76
- ----------------------------------------------------------------------------------------------------------------------------------
(g)=(.92*f)-(h)=(g/e)
- ----------------------------------------------------------------------------------------------------------------------------------
Appraisal
BPO or Loss using Estimated Transfer Closing Date NOI Expected Workout
Internal 92% Appr. Recovery Date Date Filed FCL Sale Strategy Comments
Value** or BPO(f) % Date
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
90+ DAYS DELINQUENT
- ----------------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------------
60 DAYS DELINQUENT
- ----------------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------------
30 DAYS DELINQUENT
- ----------------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------------
Current & at Special Servicer
- ----------------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
FCL-Foreclosure
LTM-Latest 12 Months either Last Annual or Trailing 12 months
*Working Strategy should match the CSSA Loan file using abbreviated words in
place of a code number such as (FCL-In Foreclosure, MOD-Modification,
DPO-Discount Payoff, NS-Note Sale, BK-Bankruptcy, PP\Payment Plan, TBD-To Be
Determined etc...)
It is possible to combine the status codes if the loan is going in more than one
direction. (i.e. FCL/Mod, BK/Mod, BK/FCL/DPO)
**App-Appraisal, BPO-Broker opinion, Int.-Internal Value
EXHIBIT H-2
<PAGE>
Morgan Stanley Capital I, Inc.,
Commercial Mortgage Pass-Through Certificates
Series 1998-HF1
HISTORICAL LOAN MODIFICATION REPORT
as of _______________
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------------------------------------------------------
S4 S57 S58 P49 P48 P7* P7* P50* P50*
- -------------------------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------------------------
Balance
When Balance at the
Mod/ Sent to Effective Date # Mths
Prospectus Extension Effect Special of Old for Rate New
ID City State Flag Date Servicer Rehabilltation Rate Change Rate
===============================================================================================================================
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
THIS REPORT IS HISTORICAL
- -------------------------------------------------------------------------------------------------------------------------------
Information is as of modification. Each line should not change in the future. Only new modifications should be added.
- -------------------------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------------------------
===============================================================================================================================
Total For All Loans:
- -------------------------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------------------------
Total For Loans in Current Month:
- -------------------------------------------------------------------------------------------------------------------------------
# of Loans $ Balance
- -------------------------------------------------------------------------------------------------------------------------------
Modifications:
- -------------------------------------------------------------------------------------------------------------------------------
Maturity Date Extensions:
- -------------------------------------------------------------------------------------------------------------------------------
Total:
- -------------------------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------------------------
<CAPTION>
- ----------------------------------------------------------------------------------------------------------------------
P25* P25* P11* P11* P47
- ----------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------
(2) Est.
Future
Total # Interest
Mths (1) Loss to
for Realized Trust $
New Old New Change Loss to (Rate
Old P&I P&I Maturity Maturity of Mod Trust $ Reduction) Comment
======================================================================================================================
<C> <C> <C> <C> <C> <C> <C> <C>
THIS REPORT IS HISTORICAL
- ----------------------------------------------------------------------------------------------------------------------
Information is as of modification. Each line should not change in the future. Only new modifications should be added.
- ----------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------
======================================================================================================================
Total For All Loans:
- ----------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------
Total For Loans in Current Month:
- ----------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------
Modifications:
- ----------------------------------------------------------------------------------------------------------------------
Maturity Date Extensions:
- ----------------------------------------------------------------------------------------------------------------------
Total:
- ----------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------
</TABLE>
* The information in these columns is from a particular point in time and
should not change on this report once assigned.
(1) Actual principal loss taken by bonds.
(2) Expected future loss due to a rate reduction. This is just an estimate
calculated at the time of the modification.
Exhibit H-3
<PAGE>
Morgan Stanley Capital I, Inc., Commercial Mortgage Pass-Through Certificates
Series 1998-HF1
HISTORICAL LOSS ESTIMATE REPORT
as of _______________
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------------------------------------------------------
S4 S55 S61 S57 S58 P45/P7 P75 P45
- --------------------------------------------------------------------------------------------------------------------------------
(c)=b/a (a) (b) (d)
- --------------------------------------------------------------------------------------------------------------------------------
Short Name % Latest
Prospectus (When Property City State Received Appraisal Effect Net Amt
ID Appropriate) Type From or Brokers Date of Sales Received
Sale Opinion Sale Price From Sale
================================================================================================================================
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
THIS REPORT IS HISTORICAL
- --------------------------------------------------------------------------------------------------------------------------------
All information is from the liquidation date and does not need to be updated.
- --------------------------------------------------------------------------------------------------------------------------------
================================================================================================================================
Total all Loans:
- --------------------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------------------
Current Month Only:
- --------------------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------------------
<CAPTION>
- ----------------------------------------------------------------------------------------------------------------------------------
P7 P37 P39+P38
- ----------------------------------------------------------------------------------------------------------------------------------
(e) (f) (g) (h) (i)=d-(f+g+h) (k)=i-e (m)
- ----------------------------------------------------------------------------------------------------------------------------------
Date
Date Minor
Servicing Loss Adj
Scheduled Total P&I Total Fees Actual Losses Passed Minor Adj Passed
Balance Advanced Expenses Expenses Net Proceeds Passed thru thru to Trust thru
==================================================================================================================================
<C> <C> <C> <C> <C> <C> <C> <C> <C>
THIS REPORT IS HISTORICAL
- ----------------------------------------------------------------------------------------------------------------------------------
All information is from the liquidation date and does not need to be updated.
- ----------------------------------------------------------------------------------------------------------------------------------
==================================================================================================================================
Total all Loans:
- ----------------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------------
Current Month Only:
- ----------------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------------
<CAPTION>
- ----------------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------------
(n)=k+m (o)=n/e
==================================================================================================================================
Total Loss Loss % of
with Scheduled
Adjustment Balance
==================================================================================================================================
<C> <C>
- ----------------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------------
==================================================================================================================================
Total all Loans:
- ----------------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------------
Current Month Only:
- ----------------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
EHIBIT H-4
<PAGE>
Morgan Stanley Capital I, Inc., Commercial Mortgage Pass-Through Certificates,
Series 1998-HF1
REO STATUS REPORT
as of ___________________
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
S4 S55 S61 S57 S58 S62 or S63 P8 P7 P37 P39 P38
- ------------------------------------------------------------------------------------------------------------------------------------
(a) (b) (c) (d)
- ------------------------------------------------------------------------------------------------------------------------------------
Short Name Sq Ft or Paid Scheduled Total P&I Total Other
Prospectus (When Property City State Units Thru Loan Advances Expenses Advances
ID Appropriate) Type Date Balance To Date To Date (Taxes &
Escrow)
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
<CAPTION>
- -----------------------------------------------------------------------------------------------------------------------------------
P25 P11 P58 P54 P74 P75
- -----------------------------------------------------------------------------------------------------------------------------------
(e)=a+b+c+d (f) (g)=(92*f).(h)=(g/e)
- -----------------------------------------------------------------------------------------------------------------------------------
Current Cap Value Appraisal
Total Monthly Maturity LTM NOI LTM NOI/ Rate Valuation using NOI BPO or Loss using Estimated
Exposure P&I Date Date DSC Assign Date & Cap Internal 92% Appr. Recovery
*** Rate Value** or BPO(f) %
- -----------------------------------------------------------------------------------------------------------------------------------
<C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
<CAPTION>
- ----------------------------------------------------------------
- ----------------------------------------------------------------
- -----------------------------------------------------------------
REO Pending
Transfer Acquisition Closing Pending Comments
Date Date Date Offers
- ----------------------------------------------------------------
<C> <C> <C> <C> <C>
- ----------------------------------------------------------------
- ----------------------------------------------------------------
- ----------------------------------------------------------------
- ----------------------------------------------------------------
- ----------------------------------------------------------------
- ----------------------------------------------------------------
- ----------------------------------------------------------------
- ----------------------------------------------------------------
- ----------------------------------------------------------------
- ----------------------------------------------------------------
- ----------------------------------------------------------------
- ----------------------------------------------------------------
- ----------------------------------------------------------------
- ----------------------------------------------------------------
- ----------------------------------------------------------------
(1) Use thew following codes, App-Appraisal, BPO-Brokers Opinion, Int-Internal
Value
</TABLE>
EXHIBIT H-5
<PAGE>
Morgan Stanley Capital I, Inc., Commercial Mortgage Pass-Through Certificates,
Series 1998-HF1
WATCH LIST
as of ___________________
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
Stated Paid %
Prospectus Property City State Principal Thru Maturity Current
ID Type Balance Date Date DSCR Comment/Reason on Watch List
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
- ------------------------------------------------------------------------------------------------------------------------------------
List all loans on watch list and reason sorted in descending balance order.
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
Total $
====================================================================================================================================
</TABLE>
EXHIBIT H-6
<PAGE>
Morgan Stanley Capital I, Inc., Commercial Mortgage Pass-Through
Certificates Series 1998-HF1
OPERATING STATEMENT ANALYSIS REPORT
(Format Subject to Modification in Accordance with CSSA Reporting)
As of ___________________
<TABLE>
<S> <C> <C> <C> <C> <C>
PROPERTY OVERVIEW
Prospectus ID
Current Balance/Paid to Date
Property Name
Property Type GENERAL
Property Address, City, State
Net Rentable Square Feet/# Units
Year Built/Year Renovated
Year of Operations Underlying 1994 1995 1996 TTM YTD
Occupancy Rate*
Average Rental Rate
*Occupancy rates are year end or the ending date of the financial statement for the
period.
No. of Months
Number of Months Annualized Prior Yr. Current Yr. TTM 1997 YTD**
Underwriting 1994 1995 1996 as of as of 1996-Base TTM-Base
Base Line Normalized Normalized Normalized / /97 / /97 Variance Variance
REVENUE:
Base Rent
Expense Reimbursements
Parking Income
Other Income
Total Potential Income
Less: Vacancy/Collection Income
Total Effective Gross Income $0.00 $0.00 $0.00 $0.00 $0.00
Normalized-Trailing 12 months and full year financial statements that have been reviewed by the
underwriter or Servicer
** Servicer will not be expected to "Normalize" these YTD numbers.
EXPENSES:
Management Fee
Payroll
Janitorial
General & Administrative
Repairs & Maintenance
Utilities
Marketing & Advertising
Insurance
Real Estate Taxes
Miscellaneous
Total Operating Expenses $0.00 $0.00 $0.00 $0.00 $0.00
Net Operating Income $0.00 $0.00 $0.00 $0.00 $0.00
Leasing Commissions
Tenant Improvements
Replacement Reserve
Total Capital Items $0.00 $0.00 $0.00 $0.00 $0.00
N.O.I. After Capital Items $0.00 $0.00 $0.00 $0.00 $0.00
Debt Service (per Servicer) $0.00 $0.00 $0.00 $0.00 $0.00
Cash Flow after debt service $0.00 $0.00 $0.00 $0.00 $0.00
(I) DSCR: (NOI/Debt Service)
(1) DSCR: (after reserves\Cap exp.)
Source of Financial Data:
(i.e., operating statements, financial statements, tax return, other)
Notes and Assumptions:
</TABLE>
================================================================================
The years shown above will roll always showing a three year history. 1996 is the
current year financials; 1995 is the prior year financials.
This report may vary depending on the property type and because of the way
information may vary in each borrowers statement.
Income: Comment
Expense: Comment
Capital Items: Comment
(1) Used in the Comparative Financial Status Report, as applicable
EXHIBIT H-7
<PAGE>
Morgan Stanley Capital I, Inc., Series 1998-HF1
NOI ADJUSTMENT WORKSHEET for "year"
(Format Subject to Modification in Accordance with CSSA Reporting)
as of ___________________
<TABLE>
<S> <C> <C> <C>
PROPERTY OVERVIEW
Prospectus ID
Current Balance/Paid to Date
Property Name
Property Type
Property Address, City, State
Net Rentable Square Feet
Year Built/Year Renovated
Year of Operations Borrower Adjustment Normalized
Occupancy Rate*
Average Rental Rate
*Occupancy rates are year end or the ending date of the financial statement for the period.
INCOME:
Number of Mos. Annualized "Year"
Period Ended Borrower Adjustment Normalized
Statement Classification Actual
Rental Income (Category 1)
Rental Income (Category 2)
Rental Income (Category 3)
Pass Throughs/Escalations
Other Income
Effective Gross Income $0.00 $0.00 $0.00
Normalized-Full year Financial statements that have been reviewed by the underwriter or
Servicer
OPERATING EXPENSES:
Real Estate Taxes
Property Insurance
Utilities
Repairs & Maintenance
Management Fees
Payroll & Benefits Expense
Advertising & Marketing
Professional Fees
Other Expenses
Ground Rent
Total Operating Expenses $0.00 $0.00 $0.00
Operating Expense Ratio
Net Operating Income $0.00 $0.00 $0.00
Leasing Commissions
Tenant Improvements
Replacement Reserve
Total Capital Items $0.00 $0.00 $0.00
N.O.I. After Capital Items $0.00 $0.00 $0.00
Debt Service (per Servicer) $0.00 $0.00 $0.00
Cash Flow after debt service $0.00 $0.00 $0.00
(1) DSCR: (NOI/Debt Service)
(1) DSCR: (after reserves\Cap exp.)
Source of Financial Data:
(i.e., operating statements, financial statements, tax return, other)
Notes and Assumptions:
</TABLE>
================================================================================
This report should be completed by the Servicer for any "Normalization" of the
Borrowers numbers.
The "Normalized" cloumn is used in the Operating Statement Analysis Report.
This report may vary depending on the property type and because of the way
information may vary in each borrowers statement.
Income: Comment
Expense: Comment
Capital Items: Comment
(1) Used in the Comparative Financial Status Report, as applicable
EXHIBIT H-8
<PAGE>
EXHIBIT H-9
<TABLE>
<CAPTION>
Commercial Real Estate Secondary Market Securitization Association
CSSA "Property" File
(Data Record Layout)
====================================================================================================================================
Field Format CSSA
Field Name Number Type Example Description/Comments Loan
====================================================================================================================================
<S> <C> <C> <C> <C> <C>
Transaction Id 1 AN XXX97001 S1,P1
Loan ID 2 AN XXX9701A S3,P3
Prospectus Loan ID 3 AN 00000000012345 From Offering Document S4,P4
Property ID 4 AN 1001-001 Should contain Prospectus ID and propety
identifier, e.g.,1001-001,1000-002
Distribution Date 5 AN YYYYMMDD P5
Cross-Collateralized Loan Grouping 6 Numeric 9(3) All Loans With The Same Numeric Value
Are Crossed S75
Property Name 7 AN Text S55
Property Address 8 AN Text S56
Property City 9 AN Text S57
Property State 10 AN FL S58
Property Zip Code 11 AN 30303 S59
Property County 12 AN Text S60
Property Type Code 13 AN MF S61
Year Built 14 AN YYYY S64
Year Last Renovated 15 AN YYYY P80
Net Square Feet At Securitization 16 Numeric 25000 RT,IN,WH,OF,MU,SS,OT=SF S62
# Of Units/Beds/Rooms At Securitization 17 Numeric 75 MF, MHP, LO, HC = Units S63
Property Status 18 AN 1 1=FCL, 2=REO, 3=Defeased, 4=Partial
Release, 5=Released, 6=Same as at
securitization
Allocated Percentage of Loan at Securitization 19 Numeric 0.75 Issuer to allocate loan % attributable
to property for multi-property loans
Current Allocated Percentage 20 Numeric 0.75 Calculation based on Current Allocated
Loan Amount and Current SPB for
associated loan.
Current Allocated Loan Amount 21 Numeric 5900900 Maintained by servicer. P7
Ground Lease (Y/S/N) 22 AN N Either Y=Yes, S=Subordinat, N=No ground
lease S74
Other Escrow/Reserve Balances 23 Numeric 25000 S77
Most Recent Appraisal Date 24 AN YYYYMMDD P74
Most Recent Appraisal Value 25 Numeric 1000000 P75
Date Asset is Expected to Be Resolved 26 AN YYYYMMDD Could be different dates for different
properties if foreclosing P79
Foreclosure Date 27 AN YYYYMMDD P42
====================================================================================================================================
AN YYYYMMDD
"Setup File" - Should be included on the diskette as part of the offering document.
Page 1 of 6
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Commercial Real Estate Secondary Market Securitization Association
CSSA "Property" File
(Data Record Layout)
====================================================================================================================================
Field Format CSSA
Field Name Number Type Example Description/Comments Loan
====================================================================================================================================
<S> <C> <C> <C> <C> <C>
REO Date 28 AN P43
Occupancy % 29 Numeric 0.75 Map to "Most Recent Fiscal YTD Phys.
Occ." in CSSA P71
Occupancy Date 30 Numeric YYYYMMDD Add a new field to the CSSA Loan file. P71
Date Lease Rollover Review 31 AN YYYYMMDD Roll over review to be completed every
12 months
% Sq. Feet expiring 1-12 months 32 Numeric 0.20
% Sq. Feet expiring 13-24 months 33 Numeric 0.20
% Sq. Feet expiring 25-36 months 34 Numeric 0.20
% Sq. Feet expiring 37-48 months 35 Numeric 0.20
% Sq. Feet expiring 49-60 months 36 Numeric 0.20
Largest Tenant 37 AN Text For Office, WH, Retail, Industrial* Only
if disclosed in the offering document
Square Feet of Largest Tenant 38 Numeric 15000
2nd Largest Tenant 39 AN Text For Office, WH, Retail, Industrial* Only
if disclosed in the offering document
Square Feet of 2nd Largest Tenant 40 Numeric 15000
3rd Largest Tenant 41 AN Text For Office, WH, Retail, Industrial* Only
if disclosed in the offering document
Square Feet of 3rd Largest Tenant 42 Numeric 15000
Fiscal Year End Month 43 Numeric 12 Needed to indicate month ending for
borrower's Fiscal Year
Securitization Financials As Of Date 44 AN YYYYMMDD S72
Revenue At Securitization 45 Numeric 1000000 S70
Operating Expenses At Securitization 46 Numeric 1000000 S71
NOI At Securitization 47 Numeric 1000000 S65
DSCR At Securitization 48 Numeric 1.5 S66
Appraisal Value At Securitization 49 Numeric 1000000 S67
Appraisal Date At Securitization 50 AN YYYYMMDD S68
Physical Occupancy At Securitization 51 Numeric S69
Date of Last Inspection 52 AN YYYYMMDD
====================================================================================================================================
"Setup File" - Should be included on the diskette as part of the offering document.
Page 2 of 6
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Commercial Real Estate Secondary Market Securitization Association
CSSA "Property" File
(Data Record Layout)
====================================================================================================================================
Field Format CSSA
Field Name Number Type Example Description/Comments Loan
====================================================================================================================================
<S> <C> <C> <C> <C> <C>
Preceding FY Financial As of Date 53 AN P58
Preceding Fiscal Year Revenue 54 Numeric 1,000,000 P52
Preceding Fiscal Year Expenses 55 Numeric 1,000,000 P53
Preceding Fiscal Year NOI 56 Numeric 1,000,000 P54
Preceding Fiscal Year Debt Service Amt. 57 Numeric 1,000,000 P55
Preceding Fiscal Year DSCR 58 Numeric 1.30 P56
Preceding Fiscal Year Physical Occupancy 59 Numeric 0.90 P57
Sec Preceding FY Financial As of Date 60 AN YYYYMMDD P65
Second Preceding FY Revenue 61 Numeric 1,000,000 P59
Second Preceding FY Expenses 62 Numeric 1,000,000 P60
Second Preceding FY NOI 63 Numeric 1,000,000 P61
Second Preceding FY Debt Service 64 Numeric 1,000,000 P62
Second Preceding FY DSCR 65 Numeric 1.30 P63
Sec Preceding FY Physical Occupancy 66 Numeric 0.90 P64
====================================================================================================================================
"Setup File" - Should be included on the diskette as part of the offering document.
Page 3 of 6
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Commercial Real Estate Secondary Market Securitization Association
CSSA "Property" File
(Data Record Layout)
====================================================================================================================================
Field Name Relationship to Corresponding CSSA 100.1 Field
====================================================================================================================================
<S> <C>
Transaction Id Same as CSSA Loan File
Loan ID Same as CSSA Loan File
Prospectus Loan ID Same as CSSA Loan File
Property ID
Distribution Date Same as CSSA Loan File
Cross-Collateralized Loan Grouping
Property Name If Multi-Prop, no rollup to CSSA Loan File. Populate S55 with "Various."
Property Address If Multi-Prop, no rollup to CSSA Loan File. Populate S56 with "Various."
Property City If Multi-Prop, and all same then populate S57 with City, otherwise, "Various".
Missing info= "incomplete"
Property State If Multi-Prop, and all same then populate S58 with State, otherwise, "Various".
Missing info= "incomplete"
Property Zip Code If Multi-Prop, and all same then populate S59 with Zip, otherwise, "Various".
Missing info= "incomplete"
Property County If Multi-Prop, and all same then populate S60 with County, otherwise, "Various".
Missing info= "incomplete"
Property Type Code If Multi-Prop, and all same then populate S61 with property type otherwise
"Various". Missing Info ="incomplete"
Year Built If Multi-Prop, and all same then populate S64 with year otherwise, "000000".
Year Last Renovated If Multi-Prop, and all same then populate P80 with year otherwise, "000000".
Net Square Feet At Securitization Roll-up to loan file if populated. If missing one or more then populate with "00000"
# Of Units/Beds/Rooms At Securitization Roll-up to loan file if populated. If missing one or more then populate with "00000"
Property Status If Multi-prop and all same then populate CSSA Loan file with property, status,
otherwise various.
Allocated Percentage of Loan at Securitization No field needed in Cssa Loan file
Current Allocated Percentage No field needed in Cssa Loan file
Current Allocated Loan Amount Roll-up to Current Ending SPB (P7)
Ground Lease (Y/S/N) If any property is Y, or S then S74=Y
Other Escrow/Reserve Balances If any property populated, then S77=Y
Most Recent Appraisal Date If Multi-Prop, and all same then populate P74 with date, otherwise, "000000".
Most Recent Appraisal Value Roll-up to CSSA Loan File if populated. If missing any appraisal value, then
populate P75 with "000000)
Date Asset is Expected to Be Resolved If Multi-Prop, latest date from affiliated properties for P79.
Foreclosure Date If Multi-Prop, and all same then populate P42 with date, otherwise, "000000".
====================================================================================================================================
"Setup File" - Should be included on the diskette as part of the offering document.
Page 4 of 6
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Commercial Real Estate Secondary Market Securitization Association
CSSA "Property" File
(Data Record Layout)
====================================================================================================================================
Field Name Relationship to Corresponding CSSA 100.1 Field
====================================================================================================================================
<S> <C>
REO Date If Multi-Prop, and all same then populate P43 with date, otherwise, "000000".
Occupancy % [Weighted Average] For P71 =Sum (Curr. Allocated % Prop A) *(Occupancy Prop A)...
(Curr. Allocated % Prop Z)*(Occupancy Prop Z). If mi
Occupancy Date If Multi-Prop, and all same then populate with date, otherwise, "various+K62".
Date Lease Rollover Review No Roll up to the CSSA loan format.
% Sq. Feet expiring 1-12 months No Roll up to the CSSA loan format.
% Sq. Feet expiring 13-24 months No Roll up to the CSSA loan format.
% Sq. Feet expiring 25-36 months No Roll up to the CSSA loan format.
% Sq. Feet expiring 37-48 months No Roll up to the CSSA loan format.
% Sq. Feet expiring 49-60 months No Roll up to the CSSA loan format.
Largest Tenant No Roll up to the CSSA loan format.
Square Feet of Largest Tenant No Roll up to the CSSA loan format.
2nd Largest Tenant No Roll up to the CSSA loan format.
Square Feet of 2nd Largest Tenant No Roll up to the CSSA loan format.
3rd Largest Tenant No Roll up to the CSSA loan format.
Square Feet of 3rd Largest Tenant No Roll up to the CSSA loan format.
Fiscal Year End Month No Roll up to the CSSA loan format.
Securitization Financials As Of Date If Multi-Prop, and all same then populate S72 with date, otherwise, "000000".
Revenue At Securitization Roll up to the CSSA Loan Format, if missing any properties populate S70 with "0000"
Operating Expenses At Securitization Roll up to the CSSA Loan Format, if missing any properties populate S71 with "0000"
NOI At Securitization Roll up to the CSSA Loan Format, if missing any properties populate S85 with "0000"
DSCR At Securitization [Weighted Average] S66=Sum((Allocated % at Sec. Prop A) *(DSCR Prop A)...(Allocated
% at Sec. Prop Z)*(DSCR Prop Z). If missing one.
Appraisal Value At Securitization Roll up to the CSSA Loan Format, if missing any properties populate S70 with "0000"
Appraisal Date At Securitization If Multi-Prop, and all same then populate S68 with date, otherwise, "000000".
Physical Occupancy At Securitization Weighted Average
Date of Last Inspection
====================================================================================================================================
"Setup File" - Should be included on the diskette as part of the offering document.
Page 5 of 6
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Commercial Real Estate Secondary Market Securitization Association
CSSA "Property" File
(Data Record Layout)
====================================================================================================================================
Field Name Relationship to Corresponding CSSA 100.1 Field
====================================================================================================================================
<S> <C>
Preceding FY Financial As of Date If Multi-Prop, and all same then populate P58 with date; otherwise, "000000+K23K46".
K1
Preceding Fiscal Year Revenue No Roll up to the CSSA loan format.
Preceding Fiscal Year Expenses No Roll up to the CSSA loan format.
Preceding Fiscal Year NOI No Roll up to the CSSA loan format.
Preceding Fiscal Year Debt Service Amt. No Roll up to the CSSA loan format.
Preceding Fiscal Year DSCR No Roll up to the CSSA loan format.
Preceding Fiscal Year Physical Occupancy No Roll up to the CSSA loan format.
Sec Preceding FY Financial As of Date No Roll up to the CSSA loan format.
Second Preceding FY Revenue No Roll up to the CSSA loan format.
Second Preceding FY Expenses No Roll up to the CSSA loan format.
Second Preceding FY NOI No Roll up to the CSSA loan format.
Second Preceding FY Debt Service No Roll up to the CSSA loan format.
Second Preceding FY DSCR No Roll up to the CSSA loan format.
Sec Preceding FY Physical Occupancy No Roll up to the CSSA loan format.
====================================================================================================================================
"Setup File" - Should be included on the diskette as part of the offering document.
Page 6 of 6
</TABLE>
<PAGE>
EXHIBIT H-10
Commercial Real Estate Secondary Market Securitization Association
CSSA "Loan Setup" File
(Data Record layout)
================================================================================
Specification Description/Comments
================================================================================
- --------------------------------------------------------------------------------
Acceptable Media Types Magnetic Tape, Diskette, Electronic Transfer
Character Set ASCII
Field Delineation Comma
Density (Bytes-Per-Inch) 1600 or 6250
Magnetic Tape Label None (unlabeled)
Magnetic Tape Blocking Factor 10285 (17 records per block)
Physical Media Label Servicer Name; Data Type (Collection Period
Data); Density (Bytes-Per-inch); Blocking
Factor; Record Length
Return Address Label Required for return of physical media
(magnetic tape or diskette)
- --------------------------------------------------------------------------------
<TABLE>
<CAPTION>
====================================================================================================================================
Field Format
Field Name Number Type Example Description/Comments
====================================================================================================================================
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Transaction Id l AN XXX97001 Unique Issue Identification Mnemonic
Group Id 2 AN XXX9701A Unique Indentification Number Assigned To Each Loan
Group Within An Issue
Loan Id 3 AN 00000000012345 Unique Indentification Number Assigned To Each
Collateral Item In A Pool
Offering Document Loan Id 4 AN 123 Unique Indentification Number Assigned To Each
Collateral Item In The Prospectus
Original Note Amount 5 Numeric 1000000.00 The Mortgage Loan Balance At Inception Of The Note
Original Term Of Loan 6 Numeric 240 Original Number Of Months Until Maturity Of Loan
Original Amortization Term 7 Numeric 360 Original Number Of Months Loan Amortized Over
Original Note Rate 8 Numeric 0.095 The Note Rate At Inception Of The Note
Original Payment Rate 9 Numeric 0.095 Original Rate Payment Calculated On
First Loan Payment Due Date 10 AN YYYYMMDD First Payment Date On The Mortgage Loan
Grace Days Allowed 11 Numeric 10 Number Of Days From Due Date Borrower Is Permitted
To Remit Payment
Interest Only (Y/N) 12 AN Y Y=Yes, N=No
Balloon (Y/N) 13 AN Y Y=Yes, N=No
Interest Rate Type 14 Numeric 1 1=Fixed, 2=Arm, 3=Step, 9=Other
Interest Accural Method Code 15 Numeric 1 1=30/360, 2=Actual/365, 3=Actual/360,
4=Actual/Actual, 5=Actual/366, 6=Simple, 7=78'S
Interest in Arrears (Y/N) 16 AN Y Y=Yes, N=No
Payment Type Code 17 Numeric 1 See Payment Type Code Legend
Prepayment Lock-out End Date 18 AN YYYYMMDD Date After Which Loan Can Be Prepaid
Yield Maintenance End Date 19 AN YYYYMMDD Date After Which Loan Can Be Prepaid Without Yield
Maintenance
Prepayment Premium End Date 20 AN YYYYMMDD Date After Which Loan Can Be Prepaid Without Penalty
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
Page 1 of 4
<PAGE>
Commercial Real Estate Secondary Market Securitization Association
CSSA "Loan Setup" File
(Data Record Layout
<TABLE>
<CAPTION>
====================================================================================================================================
Field Format
Field Name Number Type Example Description/Comments
====================================================================================================================================
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Prepayment Terms Description 21 AN Text Description Of Prepayment Terms (Not To Exceed 50 Characters)
ARM Index Code 22 AN A See Arm Index Code Legend
First Rate Adjustment Date 23 AN YYYYMMDD Date Note Rate Originally Changed
First Payment Adjustment Date 24 AN YYYYMMDD Date Payment Originally Changed
ARM Margin 25 Numeric 0.025 Rate Added To Index Used In The Determination Of The Gross
Interest Rate
Lifetime Rate Cap 26 Numeric 0.15 Maximum Rate That The Borrower Must Pay On An Arm Loan Per
The Loan Agreement
Lifetime Rate Floor 27 Numeric 0.05 Minimum Rate That The Borrower Must Pay On An Arm Loan Per
The Loan Agreement
Periodic Rate Increase Limit 28 Numeric 0.02 Maximum Periodic Increase To The Note Rate Allowed Per The
Loan Agreement
Periodic Rate Decrease Limit 29 Numeric 0.02 Minimum Periodic Increase To The Note Rate Allowed Per The
Loan Agreement
Periodic Pay Adjustment Max-% 30 Numeric 0.03 Maximum Periodic % Increase To The Borrowers P&I Payment
Allowed Per The Loan Agreement
Periodic Pay Adjustment Max-$ 31 Numeric 5000.00 Maximum Periodic Dollar Increase To The Borrowers P&I Payment
Allowed Per The Loan Agreement
Payment Frequency 32 Numeric 1 1=Monthly, 3=Quarterly, 6=Semi-Annually, 12=Annually...
Rate Reset Frequency In Months 33 Numeric 1 1=Monthly, 3=Quarterly, 6=Semi-Annually, 12=Annually ...
Pay Reset Frequency In Months 34 Numeric 1 1=Monthly, 3=Quarterly, 6=Semi-Annually, 12=Annually...
Rounding Code 35 Numeric 1 Rounding Method For Sum Of Index Plus Margin
(See Rounding Code Legend)
Rounding Increment 36 Numeric 0.00125 Used In Conjunction With Rounding Code
Index Look Back In Days 37 Numeric 45 Use Index In Effect X Days Prior To Adjustment Date
Negative Amortization Allowed (Y/N) 38 AN Y Y=Yes, N=No
Max Neg Allowed (% Of Orig Bal) 39 Numeric 0.075 Maximum Lifetime Percentage Increase To The Original Balance
Allowed Per The Loan Agreement
Maximum Negate Allowed ($) 40 Numeric 25000.00 Maximum Lifetime Dollar Increase To The Original Balance
Allowed Per The Loan Agreement
Remaining Term At Securitization 41 Numeric 240 Remaining Number Of Months Until Maturity Of Loan At Cutoff
Remaining Amor-Tm At Securitiz'n 42 Numeric 360 Remaining Number Of Months Loan Amortized Over At Cutoff
Maturity Date At Securitization 43 AN YYYYMMDD The Scheduled Maturity Date Of The Mortgage Loan At
Securitization
Sched Prin Bal At Securitization 44 Numeric 1000000.00 The Scheduled Principal Balance Of The Mortgage Loan At
Securitization
Note Rate At Securitization 45 Numeric 0.095 Cutoff Annualized Gross Interest Rate Applicable To The
Calculation Of Scheduled Interest
Servicer And Trustee Fee Rate 46 Numeric 0.00025 Cutoff Annualized Fee Paid To The Servicer And Trustee
Fee Rate / Strip Rate 1 47 Numeric 0.00001 Cutoff Annualized Fee/Strip Netted Against Current Note Rate
To Determine Net Pass-Through Rate
Fee Rate / Strip Rate 2 48 Numeric 0.00001 Cutoff Annualized Fee/Strip Netted Against Current Note Rate
To Determine Net Pass-Through Rate
Fee Rate / Strip Rate 3 49 Numeric 0.00001 Cutoff Annualized Fee/Strip Netted Against Current Note Rate
To Determine Net Pass-Through Rate
Fee Rate / Strip Rate 4 50 Numeric 0.00001 Cutoff Annualized Fee/Strip Netted Against Current Note Rate
To Determine Net Pass-Through Rate
Fee Rate / Strip Rate 5 51 Numeric 0.00001 Cutoff Annualized Fee/Strip Netted Against Current Note Rate
To Determine Net Pass-Through Rate
Net Rate At Securitization 52 Numeric 0.0947 Cutoff Annualized Interest Rate Applicable To The Calculation
Of Remittance Interest
Periodic P&I Payment At Securitiz'n 53 Numeric 3000.00 The Periodic Scheduled Principal & Interest Payment
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
Page 2 of 4
<PAGE>
Commercial Real Estate Secondary Market Securitization Association
CSSA "Loan Setup" File
{Data Record Layout)
<TABLE>
<CAPTION>
====================================================================================================================================
Field Format
Field Name Number Type Example Description/Comments
====================================================================================================================================
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
# Of Property 54 Numeric 13 The Number Of Properties Underlying The Mortgage Loan
Property Name 55 AN Text If Number Of Properties Is Greater Than 1 Then "Various"
Property Address 56 AN Text If Number Of Properties Is Greater Than 1 Then "Various"
Property City 57 AN Text If Number Of Properties Is Greater Than 1 Then "Various"
Property State 58 AN Text If Number Of Properties Is Greater Than 1 Then "Various"
Property Zip Code 59 AN Text If Number Of Properties Is Greater Than 1 Then "Various"
Property County 60 AN Text If Number Of Properties Is Greater Than 1 Then "Various"
Property Type Code 61 AN MF If Number Of Properties Is Greater Than 1 Then "Various"
(See Property Type Code Legend)
Net Square Feet At Securitization 62 Numeric 25000 If Number Of Properties Is Greater Than 1 Then "000000"
# Of Units/Beds/Rms At Securitiz'n 63 Numeric 75 If Number Of Properties Is Greater Than 1 Then "000000"
Year Built 64 AN 1990 If Number Of Properties Is Greater Than 1 Then "000000"
NOI At Securitization 65 Numeric 100000.00 Net Operating Income At Securitization
DSCR At Securitization 66 Numeric 2.11 DSCR At Securitization
Appraisal Value At Securitization 67 Numeric 1000000.00 Appraisal Value At Securitization
Appraisal Date At Securitization 68 AN YYYYMMDD Appraisal Date At Securitizalion
Physical Occupancy At Securitization 69 Numeric 0.88 Physical Occupancy At Securitization
Revenue At Securitization 70 Numeric 100000.00 Revenue At Securitization
Operating Expenses At Securitization 71 Numeric 100000.00 Expenses At Securitization
Securitization Financials As Of Date 72 AN YYYYMMDD Securitization Financials As Of Date
Recourse (Y/N) 73 AN Y Y=Yes, N=No
Ground Lease (Y/N) 74 AN Y Y=Yes, N=No
Cross-Collateralized Loan Grouping 75 Numeric 9(3) All Loans With The Same Numeric Value Are Crossed
Collection Of Escrows (Y/N) 76 AN Y Y=Yes, N=No
Collection Of Other Reserves (Y/N) 77 AN Y Y=Yes, N=No
Lien Position At Securitization 78 Numeric 1 1=First, 2=Second...
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
Page 3 of 4
<PAGE>
Commercial Real Estate Secondary Market Securitization Association
CSSA "Loan Setup" File
(Data Record Layout)
<TABLE>
<CAPTION>
====================================================================================================================================
Payment Types Code ARM Index Code Rounding Code
Legend Legend Legend
====================================================================================================================================
<S> <C> <C>
1 Fully Amortizing A 11 FHLB COFI (1 Month) 1 Unrounded
2 Amortizing Balloon B 11 FHLB COFI (6 Month) 2 Nearest Percentage Increment
3 Interest Only / Balloon C 1 Year CMT Weekly Average Treasury 3 Up To Nearest Percentage Increment
4 Interest Only / Amortizing D 3 Year CMT Weekly Average Treasury 4 Down To Nearest Percentage Increment
5 Interest Only / Amortizing / Balloon E 5 Year CMT Weekly Average Treasury
6 Principal Only F Wall Street Joumal Prime Rate
9 Other G 1 Month LIBOR
H 3 Month LIBOR
I 6 Month LIBOR
J National Mortgage Index Rate
All Others Use Short Text Description
- ------------------------------------------------------------------------------------------------------------------------------------
<CAPTION>
================================================================================
Property Types Code
Legend
================================================================================
MF Multifamily
RT Retail
HC Health Care
IN Industrial
WH Warehouse
MH Mobile Home Park
OF Office
MU Mixed Use
LO Lodging
SS Self Storage
OT Other
- --------------------------------------------------------------------------------
</TABLE>
Page 4 of 4
<PAGE>
EXHIBIT H-11
[SEE EXHIBITS H-9 and H-10]
<PAGE>
Schedule I
MORTGAGE LOAN SCHEDULE
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
Prospectus Mortage Original
Loan No. Property Name Borrower Name City State Rate Term
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
16 Marymount Manor(2C) Marymount Manor Apartments, LLC Redwood City CA 7.210% 120
17 Marymount Tower(2C) Marymount Tower Apartments, LLC Redwood City CA 7.210% 120
18 Park Place Shopping Center Park Place Enterprises, LTD Perkins Township OH 8.030% 120
23 College Station Apartments(3C) Multi Properties, Byran/
College Station Ltd. College Station TX 7.890% 120
33 Lake Village Apartments Lake Village Condomimiums
U.S. Limited Partnership La Mesa CA 7.220% 120
44 Holiday Inn and Ramada Inn(3D) Triple T Inns of Pennslyvania, Inc. Hermitage PA 8.660% 120
51 Sunset Mall Minkz Development, L.L.C. Portland OR 7.650% 180
52 Ramada Hotel Valley Ho Resort Kemp Properties, Inc. Scottsdale AZ 7.740% 120
53 Wynhaven Apartments Berkman Wynhaven Associates, L.P. Marietta GA 7.590% 120
55 Lake Forest Office(3E) Lake Forest Partners Lake Forest CA 7.570% 120
58 Central Plaza UC Central, LLC Union City CA 7.520% 120
61 Rose Apartments The Rose Flower Corp. Los Angeles CA 7.210% 120
63 Phoenix Inn - Phoenix Phoenix Inn Properties, L.L.C. Phoenix AZ 7.870% 120
of Oregon
71 Meadow Park Plaza Wedgewood Apartments Limited Part. Torrance CA 8.100% 180
72 Lincoln Bank Building Allsize Commercial &
Residential Storage, Inc. Charlotte NC 7.190% 120
81 Holly Ravine Shopping Center Reeseville Associates, Inc. Cherry Hill NJ 7.660% 120
88 Comfort Inn - Madison Hartford Acceptance, Inc. Madison WI 7.360% 120
94 Hampton Inn - Elgin Hawkhaven Mobile Court, Inc. Elgin IL 7.350% 120
105 Pompano Palms Apartments Arbor Woods Associates Pompano FL 8.970% 120
Limited Partnership
114 16 Bleeker Street Knox Village Associates Millburn Township NJ 7.970% 120
125 Harvard Medical Park Century Storage Partners Roseburg OR 7.690% 120
127 Commerce Crossing Woodshire Properties II New Bern NC 8.625% 180
141 Phoenix Inn - Troutdale North Valley Storage - Foothill Troutdale OR 7.870% 120
143 Stone Creek Plaza Everett Mall Mini Inc. Flower Mound TX 7.860% 240
147 Allstate Insurance Building Mira Mesa, Inc. Macon GA 8.100% 120
160 Westview Plaza Shopping Center Hamilton House Associates Phoenix AZ 7.970% 120
177 Laboratory Building Sorrento Valley Self Storage, LLC Seattle WA 7.480% 120
180 Hillside Courtyard 11-Ryan Limited Partnership Sedona AZ 7.960% 120
192 Greenbriar Business Park St. Vrain Village Partnership Charlotte NC 7.550% 120
202 Oxford Corners Insite Lombard, L.L.C. Lombard IL 7.430% 120
220 Fleming Creek Circle Apartments Fleming Creek, LLC Greece NY 7.210% 120
229 11959 Canyon Road Polse Family Living Trust, et al Beaverton OR 8.130% 180
230 Walgreens - Monterey Elsa Geisreiter and the
Bert Geisreiter Trust Seaside CA 8.500% 240
232 Petcare Superstore Tomaras Geneva, Inc. Geneva IL 7.790% 120
233 Memorial Crossing(3K) Collins Bros. Investment Company Ltd. Tulsa OK 8.180% 120
234 Bethany Square Pollack & Pollack Phoenix AZ 7.810% 120
245 370 Diablo Road LSB Properties, LLC Danville CA 7.800% 120
251 British Square British Square Associates Winston-Salem NC 7.500% 120
Limited Partnership
256 Wyncrossing Apartments Berkman LeRand Associates, L.P. Atlanta GA 7.590% 120
257 Garcia Apartments Garcia Apts., Inc. Miami FL 7.540% 120
259 Sycamore Hill Apartments Sycamore Hill Venture Littleton CO 7.260% 120
291 Shattalon Terrace Apartments Shattalon Terrace Associates
Limited Partnership Winston-Salem NC 7.700% 120
298 Crown Ridge Apartments Crown Ridge, LLC Columbus OH 8.150% 120
330 Bozeman K-Mart/Applebees Col-Bozeman, LLC Bozeman MT 8.270% 213
335 McWhorters - Cupertino Melvin Mosk, Milton J. Mosk,
and Mervyn Goodman Cupertino CA 8.500% 192
351 Radio Shack - Blockbuster Center Columbia Pulaski Limited Partnership Chicago IL 7.530% 120
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
Prospectus Maturity Original Monthly Cut-Off Original Master Servicing
Loan No. Property Name Date Balance Payment Date Balance Amort. Term(6) Fee Rate (bps)
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
16 Marymount Manor(2C) 1/1/08 $8,164,204 $55,473 $8,149,703 360 7.5
17 Marymount Tower(2C) 1/1/08 $5,940,531 $40,364 $5,929,979 360 7.5
18 Park Place Shopping Center 11/1/07 $13,600,000 $105,237 $13,542,572 300 16.5
23 College Station Apartments(3C) 10/1/07 $11,991,500 $91,680 $11,929,226 300 16.5
33 Lake Village Apartments 12/1/07 $10,450,000 $71,075 $10,425,291 360 7.5
44 Holiday Inn and Ramada Inn(3D) 10/1/07 $8,700,000 $70,995 $8,660,556 300 7.5
51 Sunset Mall 10/1/12 $7,650,000 $54,278 $7,622,101 360 7.5
52 Ramada Hotel Valley Ho Resort 12/1/07 $7,600,000 $57,355 $7,574,869 300 17.5
53 Wynhaven Apartments 12/1/07 $7,500,000 $52,904 $7,483,529 360 16.65
55 Lake Forest Office(3E) 1/1/08 $7,250,000 $51,041 $7,237,842 360 7.5
58 Central Plaza 12/1/07 $7,100,000 $49,742 $7,084,187 360 7.5
61 Rose Apartments 11/1/07 $6,880,000 $46,747 $6,858,192 360 7.5
63 Phoenix Inn - Phoenix 1/1/08 $6,500,000 $53,844 $8,476,090 240 16.65
71 Meadow Park Plaza 9/1/12 $5,925,000 $44,445 $5,977,343 360 7.5
72 Lincoln Bank Building 1/1/08 $5,800,000 $40,178 $5,914,442 360 16.65
81 Holly Ravine Shopping Center 10/1/07 $1,150,000 $37,641 $5,281,890 360 7.5
88 Comfort Inn - Madison 1/1/08 $5,000,000 $39,614 $4,950,676 240 16.65
94 Hampton Inn - Elgin 1/1/08 $2,600,000 $37,433 $4,681,706 240 16.65
105 Pompano Palms Apartments 6/1/07 $4,250,000 $38,381 $4,218,764 240 7.5
114 16 Bleeker Street 1/1/08 $4,000,000 $30,793 $3,990,641 300 16.5
125 Harvard Medical Park 12/1/07 $3,900,000 $29,229 $3,877,033 300 16.65
127 Commerce Crossing 11/1/12 $3,800,000 $32,330 $3,856,891 276 15.5
141 Phoenix Inn - Troutdale 1/1/08 $3,400,000 $28,165 $3,387,493 240 16.65
143 Stone Creek Plaza 12/1/17 $3,300,000 $27,316 $3,282,803 240 7.5
147 Allstate Insurance Building 12/1/07 $3,150,000 $23,630 $3,183,681 360 16.65
160 Westview Plaza Shopping Center 9/1/07 $3,000,000 $23,095 $2,980,662 300 15.5
177 Laboratory Building 12/1/07 $3,600,000 $19,315 $2,692,510 330 15
180 Hillside Courtyard 10/1/07 $2,650,000 $19,736 $2,690,746 360 14.5
192 Greenbriar Business Park 1/1/08 $2,400,000 $16,863 $2,395,962 360 7.5
202 Oxford Corners 1/1/08 $2,500,000 $17,361 $2,495,713 360 15.5
220 Fleming Creek Circle Apartments 1/1/08 $2,100,000 $14,269 $2,096,270 360 7.5
229 11959 Canyon Road 11/1/12 $2,058,000 $16,062 $2,049,449 300 15.5
230 Walgreens - Monterey 10/1/17 $2,150,000 $18,658 $2,132,610 240 15.5
232 Petcare Superstore 12/1/07 $2,000,000 $15,159 $1,993,440 300 15.5
233 Memorial Crossing(3K) 12/1/07 $2,000,000 $14,927 $1,996,102 360 16.65
234 Bethany Square 12/1/07 $2,000,000 $15,185 $1,993,461 300 15.5
245 370 Diablo Road 12/1/07 $1,900,000 $14,950 $1,892,160 270 15.5
251 British Square 1/1/08 $1,850,000 $12,935 $1,846,863 360 7.5
256 Wyncrossing Apartments 12/1/07 $1,785,000 $12,591 $1,781,080 360 16.65
257 Garcia Apartments 1/1/08 $1,762,500 $12,372 $1,759,530 360 7.5
259 Sycamore Hill Apartments 11/1/07 $1,750,000 $11,950 $1,744,508 360 7.5
291 Shattalon Terrace Apartments 1/1/08 $1,440,000 $10,267 $1,437,634 360 7.5
298 Crown Ridge Apartments 12/1/07 $1,375,000 $10,749 $1,370,746 300 16.65
330 Bozeman K-Mart/Applebees 9/1/15 $1,120,000 $10,045 $1,112,980 213 16.65
335 McWhorters - Cupertino 7/1/13 $1,100,000 $10,499 $1,077,793 192 15.5
351 Radio Shack - Blockbuster Center 1/1/08 $800,000 $5,928 $798,013 300 15.5
------------
$201,915,731
============
</TABLE>
<PAGE>
Footnotes to Mortgage Loan Schedule
(1) N/A
(2) Sets of Mortgage Loans that have identical alphabetical coding designates
multiple loans that are cross-collateralized and cross-defaulted.
(3) Mortgage Loan is secured by liens on multiple properties. Property type,
address, and year built indicated are for the largest of such properties.
All other property information is aggregated for the multiple properties,
which are summarized below:
(3A) N/A
(3B) N/A
(3C) Secured by liens on nine multifamily properties.
(3D) Secured by liens on two hospitality properties.
(3E) Secured by liens on four office properties.
(3F) N/A
(3G) N/A
(3H) N/A
(3I) N/A
(3J) N/A
(3K) Secured by liens on two retail properties.
(3L) N/A
(3M) N/A
(4) N/A
(5) N/A
(6) The Amortizaton Term shown is the basis for determining the fixed monthly
principal and interest payment as set forth in the related note. Due to the
actual/360 interest calculation methodology applied to most Mortgage Loans,
the actual amortization to a zero balance will be longer.
<PAGE>
Schedule II
MORTGAGE LOAN SCHEDULE
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
Prospectus
Loan No. Property Name Borrower Name
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<S> <C> <C>
1 Pacific Coast Plaza Shopping Center Pacific Coast Plaza Investments, LLC
2 Norwood Gardens Norwood Gardens, LLC
3 Rockwood Pavilion Rockwood Pavilion Limited Partnership
4 Skold Self Storage Portfolio (2A) (3A) Skol Properties & Investments, LLC
5 Affordable Self Storage (2A DMT Partnership
6 Skold Portfolio -Greenwood Self Storage (2A) Greenwood Associates
7 Skold Portfolio -Evergreen Mini Storage (2A) Evergreen Associates
8 351 California Street (2B) Brugnara Properties I, L.P.
9 201 Sansome Street (2B) Brugnara Properties II, L.P.
10 Boulder Marriott Village Hotel, LLLP
11 Beverly Garland Hotel Rio Vista Development Company
12 Rancho Viejo Apts. Falcon Development Co. No. 9501, LLC
13 Lincoln on Memorial Apartments Lincoln on Memorial, L.L.C.
14 Davis Square Center Davis Square Center LLC
15 Fleming Portfolio (3B) Arizona ACV VI, LLC
19 A&P Food Market ARC International Fund II L.P.
20 The First National Bank Building Water Street Limited Parnership
21 Boylston Apartments Boylston 1163-1191 Associates LLC
22 Greenbar Apartments Petaluma Greenbriar Apartments, L.P.
24 Kmart Plaza Gray Enterprises
25 Rivershire Apartments Rivershire Associates
26 Haggerty Tech Center JRF II Associates
27 Village at Chestnut Hill Village at Chestnut Hill LLC
28 Orland Park Exec. Ctr (2D) American National Bank
29 GMAC Building (2d) Independent Trust Corporation
30 Ridgecrest Terrace Apartments Ridgecrst Terrace LLC
31 Fountain Square Shopping Center Fountain Square Associates LP
32 1550 Brickell Associates (7) 1550 Brickell Associates
32.1 Lafayette Towers Lafayette Towers
34 All Aboard Mini Storage Portfolio - Oakland (2E) Hyrail Partners IV, LLC
35 All Aboard Mini-Storage Portfolio - Ventura (2E) Hyrall Partners IV, LLC
36 All Aboard Mini Storage Portfolio - Van Nuys (2E) Hyrall Partners IV, LLC
37 Stor-Mor of Cypress (2F) M/J Properties Ltd.
38 Stor-Mor - Anaheim (2F) M/J Properties Ltd.
39 Stor-Mor - Torrance (2F M/J Properties Ltd.
40 Cypress Lake Apartments C.S. Apartments, Ltd.
41 Boardwalk Square Boardwalk Shopping Center, LLP
42 Whispering Lakes Apts. Figment Corporation
43 Eagle Ridge Retail Shopping Center Eagleridge Associates LLC
46 The Willows at Appleton Square (8) Appleton Estates Limited Partnership
47 Ashley Park Apartments EPC/Ashley Park Apartments, Ltd
49 Brumby Apartments Brumby Property Investors
50 Sun Vista RV Resort Sun Vista R.V. Resort
54 Claridge Court Apartments Claridge Court Associates, L.P.
56 Acorn Self Storage (2G) Acorn II, L.L.C.
57 ACORN III SELF STORAGE (2G) Acorn III, L.L.C.
59 Bend Villa Court Bend Villa L.L.C.
60 Danbury Retail Center Forecast Danbury LP
62 Rose Medical Plaza Rose Medical Plaza, Ltd
64 Mesa Verde Mesa Verde Partnership
65 Cedar Ridge Apts. Cedar Ridge of Minnetonka Apartments
110 Mira Mesa Self Storage (2H) Mira Mesa Self Storage, LLC
197 Sorrento Mesa SSF (2H) Sorrento Mesa Self Storage, LLC
66 Cardinal Crest MHC (21) Meadows Development Group LLC
67 Harbor Lights Mobile Home Community (21) Meadows Development Group LLC
68 Meadowview Place MHC (21) Meadows Development Group LLC
69 Skyview Terrace Mobile Home Park (21) Meadows Development Group LLC
73 Walnut Ridge Apts Wedgwood Apartments Limited Part.
74 Allsize Commercial Storage Allsize Commercil & Residential Storage, Inc.
76 Elmwood Distribution Center Four Star - Harshan LLC
77 Rt. 18 Mobile Home Com. Portfolio (9) Washington Estates, LLC
78 Berrytree Apartments Berrytree Apartments, L.L.C.
79 Silver Drive Office/Warehouse Buildings Silver Drive Parnters
80 Fairfield Place Apartments Magna Trust Company
82 Reesevill Acres (2J) Reeseville Associates, LLC
83 Spring Brook Village MHP (2J) Reeseville Associates, LLC
84 Bridgeview Gardens MHC (2J) Reeseville Associates, LLC
85 Palm Springs Plaza MDN Properties, Inc.
86 Plaza on the Boulevard Plaza on the Boulevard, LLC
87 Burtons Landing B.L. Apartments LLC
89 605 Market Street CA SF No. 1, LP
90 Harford Mobile Village Harford Acceptance, Inc.
91 511 East 80th Street 511 East 80th Street Associates
93 Lakeside Park Mobile Home Park Lakeside Acceptance, LLC
95 AAA Chatsworth Self Storage AAA Self-Storage LLC
96 Triton Valley Estates Portfolio (2K) 3F) Hawkhaven Mobile Court, Inc.
<CAPTION>
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Prospectus Mortgage Original Maturity
Loan No. Property Name City State Rate Term Date
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<S> <C> <C> <C> <C> <C> <C>
1 Pacific Coast Plaza Shopping Center Oceanside CA 7.9300% 119 10/1/07
2 Norwood Gardens Norwood MA 6.7900% 120 1/1/08
3 Rockwood Pavilion Cincinnati OH 8.2400% 102 4/1/06
4 Skold Self Storage Portfolio (2A) (3A) Lynnwood WA 6.9300% 120 2/1/08
5 Affordable Self Storage (2A Bothell WA 6.9300% 120 2/1/08
6 Skold Portfolio -Greenwood Self Storage (2A) Seattle WA 6.9930% 120 2/1/08
7 Skold Portfolio -Evergreen Mini Storage (2A) Silverdale WA 6.9300% 120 2/1/08
8 351 California Street (2B) San Francisco CA 8.1000% 120 8/1/07
9 201 Sansome Street (2B) San Francisco CA 8.1000% 120 8/1/07
10 Boulder Marriott Boulder CO 7.5800% 180 12/1/07
11 Beverly Garland Hotel North Hollywood CA 6.8600% 120 1/1/18
12 Rancho Viejo Apts. Las Vegas NV 6.9800% 120 12/1/07
13 Lincoln on Memorial Apartments Tulsa OK 7.2900% 120 10/1/07
14 Davis Square Center Somerville MA 7.3000% 120 1/1/18
15 Fleming Portfolio (3B) Tempe AZ 7.7200% 120 10/1/17
19 A&P Food Market Woodcliffe Lake NJ 6.9900% 181 1/31/21
20 The First National Bank Building Milwaukee WI 8.1300% 120 8/1/07
21 Boylston Apartments Boston MA 6.8700% 120 01/1/08
22 Greenbar Apartments Petaluma CA 7.1400% 120 12/1/07
24 Kmart Plaza Costa Mesa CA 7.8000% 120 8/1/07
25 Rivershire Apartments Greenfield WI 7.0200% 120 2/1/08
26 Haggerty Tech Center Livonia MI 8.2900% 120 8/1/07
27 Village at Chestnut Hill West Roxbury MA 7.0400% 120 1/1/08
28 Orland Park Exec. Ctr (2D) Orland Park IL 7.2100% 120 1/1/08
29 GMAC Building (2d) Orland Park IL 7.2100% 120 1/1/08
30 Ridgecrest Terrace Apartments West Roxbury MA 6.8400% 120 1/1/08
31 Fountain Square Shopping Center Phoenix AZ 8.1000% 120 8/1/07
32 1550 Brickell Associates (7) Miami FL 6.6500% 120 2/1/08
32.1 Lafayette Towers Detroit MI 7.1800% 120 2/1/08
34 All Aboard Mini Storage Portfolio - Oakland (2E) Oakland CA 7.7900% 120 1/1/08
35 All Aboard Mini-Storage Portfolio - Ventura (2E) Ventura CA 7.7900% 119 12/1/07
36 All Aboard Mini Storage Portfolio - Van Nuys (2E) Van Nuys CA 7.7900% 119 12/1/07
37 Stor-Mor of Cypress (2F) Cypress CA 7.3700% 120 12/1/07
38 Stor-Mor - Anaheim (2F) Anaheim CA 7.3700% 120 12/1/07
39 Stor-Mor - Torrance (2F Torrance CA 7.3700% 120 12/1/07
40 Cypress Lake Apartments Houston TX 7.3800% 120 10/1/07
41 Boardwalk Square Kansas City MO 8.2900% 120 7/1/07
42 Whispering Lakes Apts. Shelby Township MI 6.8100% 121 2/1/08
43 Eagle Ridge Retail Shopping Center Pueblo CO 7.3100% 120 11/1/17
46 The Willows at Appleton Square (8) Methuen MA 7.4600% 120 9/1/07
47 Ashley Park Apartments Houston TX 7.7400% 120 11/1/07
49 Brumby Apartments Marietta GA 7.7580% 120 9/1/07
50 Sun Vista RV Resort Yuma AZ 7.2700% 120 1/1/08
54 Claridge Court Apartments Old Bridge NJ 8.7600% 120 9/30/06
56 Acorn Self Storage (2G) Chicago IL 7.1800% 120 2/1/08
57 ACORN III SELF STORAGE (2G) Mundelein IL 7.1300% 120 2/1/08
59 Bend Villa Court Bend OR 7.3400% 120 1/1/08
60 Danbury Retail Center Danbury CT 7.6500% 240 12/1/17
62 Rose Medical Plaza Denver CO 7.1800% 120 12/1/07
64 Mesa Verde Wheat Ridge CO 7.0800% 120 2/1/08
65 Cedar Ridge Apts. Minnetonka MN 7.0300% 240 12/1/17
110 Mira Mesa Self Storage (2H) San Diego CA 8.8100% 120 7/1/07
197 Sorrento Mesa SSF (2H) San Diego CA 8.4200% 120 7/1/07
66 Cardinal Crest MHC (21) Brodhead WI 7.4100% 120 11/1/07
67 Harbor Lights Mobile Home Community (21) Menasha WI 7.4100% 120 11/1/07
68 Meadowview Place MHC (21) Janesville WI 7.4100% 120 11/1/07
69 Skyview Terrace Mobile Home Park (21) East Troy WI 7.4100% 120 11/1/07
73 Walnut Ridge Apts Arlington TX 7.6100% 120 11/1/07
74 Allsize Commercial Storage Laguna Hills CA 8.0900% 120 9/1/07
76 Elmwood Distribution Center Harahan LA 7.8600% 120 8/1/07
77 Rt. 18 Mobile Home Com. Portfolio (9) Washington PA 7.1700% 120 2/1/08
78 Berrytree Apartments Okemos MI 7.0100% 120 2/1/08
79 Silver Drive Office/Warehouse Buildings Columbus OH 7.3900% 120 12/1/07
80 Fairfield Place Apartments O'Fallon IL 7.1500% 120 1/1/08
82 Reesevill Acres (2J) Reeseville WI 7.4100% 120 11/1/07
83 Spring Brook Village MHP (2J) Beloit WI 7.4100% 120 11/1/07
84 Bridgeview Gardens MHC (2J) Neenah WI 7.4100% 120 11/1/07
85 Palm Springs Plaza Coral Springs FL 8.4700% 120 6/1/27
86 Plaza on the Boulevard Stanton CA 8.4450% 156 9/1/10
87 Burtons Landing Grand Rapids MI 7.1700% 120 2/1/08
89 605 Market Street San Francisco CA 7.2700% 120 1/1/08
90 Harford Mobile Village Edgewood MD 7.5400% 120 11/1/07
91 511 East 80th Street New York NY 7.4300% 120 9/1/07
93 Lakeside Park Mobile Home Park Hagerstown MD 7.5400% 120 11/1/07
95 AAA Chatsworth Self Storage Chatsworth CA 7.2600% 180 1/1/13
96 Triton Valley Estates Portfolio (2K) 3F) Marilla NY 7.2900% 120 11/1/07
<CAPTION>
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Master
Prospectus Original Monthly Cut-Off Date Original Servicing
Loan No. Property Name Balance Payment Loan Balance Amortization Fee Rate
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<S> <C> <C> <C> <C> <C> <C>
1 Pacific Coast Plaza Shopping Center 33,000,000.00 240,533.91 32,909,269.93 360 7.5
2 Norwood Gardens 22,316,249.00 146,740.65 22,266,786.97 360 7.5
3 Rockwood Pavilion 21,750,000.00 163,247.61 21,679,551.07 360 7.5
4 Skold Self Storage Portfolio (2A) (3A) 15,275,000.00 101,894.39 15,261,318.74 360 7.5
5 Affordable Self Storage (2A 970,000.00 6,470.54 969,131.21 360 7.5
6 Skold Portfolio -Greenwood Self Storage (2A) 1,825,000.00 12,173.96 1,823,365.42 360 7.5
7 Skold Portfolio -Evergreen Mini Storage (2A) 700,000.00 4,669.46 699,373.04 360 7.5
8 351 California Street (2B) 12,800,000.00 99,641.91 12,705,408.83 300 7.5
9 201 Sansome Street (2B) 5,500,000.00 42,814.88 5,459,355.18 300 7.5
10 Boulder Marriott 18,000,000.00 135,195.23 17,931,352.07 300 7.5
11 Beverly Garland Hotel 16,000,000.00 112,628.61 15,951,465.43 300 7.5
12 Rancho Viejo Apts. 15,700,000.00 105,265.05 15,654,906.65 360 7.5
13 Lincoln on Memorial Apartments 15,500,000.00 107,226.36 15,433,945.60 360 7.5
14 Davis Square Center 15,300,000.00 105,948.61 15,267,974.69 360 7.5
15 Fleming Portfolio (3B) 15,345,000.00 115,603.13 15,251,717.99 300 7.5
19 A&P Food Market 13,500,000.00 89,725.19 13,477,760.03 360 7.5
20 The First National Bank Building 13,050,000.00 99,609.56 12,973,444.45 324 7.5
21 Boylston Apartments 13,000,000.00 86,187.60 12,971,450.28 360 7.5
22 Greenbar Apartments 12,590,000.00 85,793.50 12,554,679.69 360 7.5
24 Kmart Plaza 12,000,000.00 86,384.46 11,940,151.83 360 7.5
25 Rivershire Apartments 11,400.00 76,746.21 11,389,943.79 360 7.5
26 Haggerty Tech Center 11,300,000.00 85,211.10 11,248,922.61 360 7.5
27 Village at Chestnut Hill 11,196,262.00 75,527.88 11,172,142.84 360 7.5
28 Orland Park Exec. Ctr (2D) 7,600,000.00 52,155.77 7,583,934.51 360 7.5
29 GMAC Building (2d) 3,400,000.00 23,332.84 3,392,812.81 360 7.5
30 Ridgecrest Terrace Apartments 10,800,000.00 71,381.83 10,776,200.09 360 7.5
31 Fountain Square Shopping Center 10,700,000.00 79,260.00 10,649,746.49 360 7.5
32 1550 Brickell Associates (7) 10,600,000.00 68,697.58 10,590,044.08 360 7.5
32.1 Lafayette Towers 10,500,000.00 71,840.31 10,490,984.69 360 7.5
34 All Aboard Mini Storage Portfolio - Oakland (2E) 4,700,000.00 35,958.96 4,687,036.68 300 7.5
35 All Aboard Mini-Storage Portfolio - Ventura (2E) 2,600,000.00 19,892.19 2,592,828.80 300 7.5
36 All Aboard Mini Storage Portfolio - Van Nuys (2E) 2,800,000.00 21,422.36 2,792,277.17 300 7.5
37 Stor-Mor of Cypress (2F) 2,250,000.00 16,588.87 2,241,188.25 300 7.5
38 Stor-Mor - Anaheim (2F) 2,400,000.00 17,692.66 2,390,600.80 300 7.5
39 Stor-Mor - Torrance (2F 5,350,000.00 39,439.90 5,329,047.60 300 7.5
40 Cypress Lake Apartments 10,000,000.00 69,801.66 9,958,019.75 360 7.5
41 Boardwalk Square 10,000,000.00 75,408.05 9,948,161.81 360 7.5
42 Whispering Lakes Apts. 9,800,000.00 64,572.86 9,778,329.17 360 7.5
43 Eagle Ridge Retail Shopping Center 9,350,000.00 64,811.06 9,318,334.27 360 7.5
46 The Willows at Appleton Square (8) 8,400,000.00 59,100.34 8,379,266.14 360 7.5
47 Ashley Park Apartments 8,200,000.00 59,299.25 8,174,151.08 360 7.5
49 Brumby Apartments 8,100,000.00 57,958.35 8,066,636.66 360 7.5
50 Sun Vista RV Resort 7,750,000.00 53,506.05 7,733,724.87 360 7.5
54 Claridge Court Apartments 7,400,000.00 60,889.00 7,276,152.08 300 7.5
56 Acorn Self Storage (2G) 3,500,000.00 23,946.77 3,496,994.90 360 7.5
57 ACORN III SELF STORAGE (2G) 3,700,000.00 25,187.91 3,696,796.26 360 7.5
59 Bend Villa Court 7,000,000.00 51,465.33 6,979,798.85 300 7.5
60 Danbury Retail Center 6,950,000.00 57,082.73 6,909,965.78 240 7.5
62 Rose Medical Plaza 6,700,000.00 48,556.43 6,673,119.66 300 7.5
64 Mesa Verde 6,500,000.00 44,025.94 6,494,324.07 360 7.5
65 Cedar Ridge Apts. 6,500,000.00 43,803.28 6,481,467.85 360 7.5
110 Mira Mesa Self Storage (2H) 4,150,000.00 34,288.30 4,118,640.94 300 7.5
197 Sorrento Mesa SSF (2H) 2,350,000.00 18,801.17 2,331,685.14 300 7.5
66 Cardinal Crest MHC (21) 1,245,000.00 19,210.90 1,238,856.77 300 7.5
67 Harbor Lights Mobile Home Community (21) 1,500,000.00 11,097.47 1,492,598.53 300 7.5
68 Meadowview Place MHC (21) 1,545,000.00 11,430.40 1,537,376.47 300 7.5
69 Skyview Terrace Mobile Home Park (21) 2,050,000.00 15,166.55 2,039,884.63 300 7.5
73 Walnut Ridge Apts 5,925,000.00 42,307.05 5,905,914.54 360 7.5
74 Allsize Commercial Storage 5,800,000.00 45,545.62 5,762,046.05 300 7.5
76 Elmwood Distribution Center 5,650,000.00 43,084.92 5,606,612.91 300 7.5
77 Rt. 18 Mobile Home Com. Portfolio (9) 5,600,000.00 38,276.28 5,600,000.00 360 7.5
78 Berrytree Apartments 5,500,000.00 39,250.35 5,492,878.81 300 7.5
79 Silver Drive Office/Warehouse Buildings 5,500,000.00 38,429.08 5,485,121.14 360 7.5
80 Fairfield Place Apartments 5,400,000.00 38,834.98 5,388,509.13 360 7.5
82 Reesevill Acres (2J) 650,000.00 4,808.91 646,792.68 300 7.5
83 Spring Brook Village MHP (2J) 1,150,000.00 8,508.06 1,144,325.54 300 7.5
84 Bridgeview Gardens MHC (2J) 3,500,000.00 24,503.47 3,488,343.28 360 7.5
85 Palm Springs Plaza 5,250,000.00 40,256.39 5,220,372.06 360 7.5
86 Plaza on the Boulevard 5,120,000.00 39,168.97 5,100,844.65 360 7.5
87 Burtons Landing 5,040,000.00 34,448.66 5,035,665.34 360 7.5
89 605 Market Street 5,000,000.00 36,530.95 4,985,466.71 300 7.5
90 Harford Mobile Village 5,000,000.00 35,457.55 4,983,705.15 360 7.5
91 511 East 80th Street 4,950,000.00 34,723.70 4,925,168.69 348 7.5
93 Lakeside Park Mobile Home Park 4,750,000.00 33,684.67 4,734,519.90 360 7.5
95 AAA Chatsworth Self Storage 4,900,000.00 35,768.18 4,885,742.74 300 7.5
96 Triton Valley Estates Portfolio (2K) 3F) 2,600,000.00 17,986.36 2,591,164.99 360 7.5
</TABLE>
Page 1
<PAGE>
MORTGAGE LOAN SCHEDULE
<TABLE>
<CAPTION>
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Prospectus
Loan No. Property Name Borrower Name
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<S> <C> <C>
97 Triton Valley Estates - Derby (2K) CT Properties, Inc.
98 Stoneridge Apts. Stoneridge Investments, Ltd.
99 Dunham 29 Dunham road (2L) DIV DUNHAM 29, LLC
100 35 Dunham Road (2L) DIV DUNHAM 35, LLC
101 Pacific View Apartments Pedro S. Arroyo and Karen G. Arroyo 1996 Trust
102 Sonoma Pointe Apartments Zabel Properties
103 A-1 Self Storage - Anaheim Anaheim Storage LLC
104 Holiday Ranch & Happy Landings MHC Mid-American Properties Limited Partnership
106 Brewery Apartments 1301 W. Fletcher Building LLC
107 Arbor Woods Mobile Home Community Arbor Woods Associates Limited Partnership
108 Gardens at Negley Gardens at Negley Partners, LLP
109 Coral Ridge Office Center (10) MDS Office Center, Ltd.
111 South Street Office Center Boston Kenmore Realty, LLC
112 Lake of the Pines (11) Lake of the Pines LLC
113 Alameda Crossing ACSC, L.L.C.
115 Knox Village Knox Village Associates
117 Monmouth MHP Monmouth Mobile Home Park, Inc.
118 American Mini Storage Lombardi Court, L.L.C.
119 Edison Lock-Up Self Storage Edison Lock-UP LP
120 Saf Keep SSF - San Leandro Saf Keep, Ltd.
121 The Oaks Office Building Creveoff Associates
122 Vista Manor Mobile Home Park John H. Cummings, a married man
123 Nova Self-Storage Nova Stor - Suva
124 Lantern Estates Dantros Lantern Estates, Inc.
126 A American Self Storage Century Storage Partners
128 Woodshire Mobile Home Park Woodshire Properties II
129 leender's Portfolio (3G) Leenders, Moore, & Associates, LLC
130 Copps Food market WAC, LLC
131 Harbour East MHC Harbour East Mobile Home Park, Inc.
132 LAGO VISTA MHP Lago Vista Investments, LLLP
133 Stor N' Lok (2M) Montclair Storage Partners, LLC
134 A-American Pico (2M) Montclair Storage Partners, LLC
135 Storage Depot-North SSF (2N) Storage Depot North Inc.
136 Storage Depot-West SSF (2N) Storage Depot North Inc.
137 San Luis Obisbo Self Storage TK Development
138 West LA Self Storage 5450 Slauson Limited
139 Willow Creek Apts. Wiechmann EnterprisesII LLC
140 Redhill MHP Rio Puerco Partners, L.P.
142 North Valley Self Storage Facility North Valley Storage - Foothill
144 Everett Portfolio (3H) Everett mall Mini Inc.
145 Sheffield Lofts 2815-25N. Sheffield Building L.L.C. &
American National Bank and Trust Company of Chicago, as Trustee
146 Paramount Self Storage National Prudential, Inc.
148 Mira Mesa Retirement Community Mira Mesa, Inc.
149 City Gables Apts. City Gables, AJZ, LLC, City Gables, SAZ LLC
150 Windsorland MHC Windsorland LLC
151 Budget Mini Storage - Phoenix (2O) Bong & Rodman Annex
152 ABQ Mini Storage (2O) Rodman and Berg I
153 Safeway Self Storage Facility United Business Management Co., LLC
154 Southgate Square Apartments Southgate Square Company
155 Palm Shadows Apartments Triple SSS, LLC & Palm Shadows, LLC
156 Park Drive Apts. Park 231-235 Associates LLC
157 Continental Luxury Apartments Continental Enterpr9ises, Ltd.
158 Dohr Apartments MM & S Dohr Associates
159 Belmont Self Storage Belmont Phase 1 LLC
161 Hamilton House Hamilton House Associates
162 Linkletter Self Storage Facility (2P)` Linkletter RC Partners
163 Lyndie Office Building (2P) Linkletter RC Partners
164 Juanita Bay Office Building Juanita Office Associates
165 Fairway Greens Apartments Fairway Green Limited Partnership
166 Rolling Hills Rolling Hills, LLC
167 Barnes & Noble Colorado Briargate Associates, L.L.C.
168 Diamond Grove Diamond Estates, LLC
169 Yankee Mobile Home Park Stephen A. Hynes, Trustee of the Yankee Mobile Home Parks
170 Skylark Village I Mobile Home Park Sklark Village Mobile Home Park, a Seskatchowan Joint Venture
171 Red Hill Estates Red Hill Estates Inc.
172 Desert Springs Apartments Professional Property Investmens, Ltd.
173 Lake Haven/Tall Pines (31) Tall Pines - Lakehaven Associates
174 Green Hill MHC Grove City Enterprises, Inc.
175 Fenton Walgreens Pace - Lakewood LLC
176 Skylark II Village Mobile Home Park Stephen Hynes and Donna Hynes
178 Sorrento Valley Self Storage Sorrento Valley Self Storage, LLC
179 Westminster Garden Westminster Gardens Co., LLC
181 Village Fair Shopping Center 11-Ryan Limited Partnership
182 Just For Feet Colorado Briargate Associates, L.L.C.
183 Airway Trade Center R.K.R. DLFY, LLC`
184 989-1001 Watertown Street ComProps Limited Parnership
<CAPTION>
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Prospectus Mortgage Original Maturity
Loan No. Property Name City State Rate Term Date
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<S> <C> <C> <C> <C> <C> <C>
97 Triton Valley Estates - Derby (2K) Derby NY 7.2900% 120 11/1/07
98 Stoneridge Apts. Houston TX 7.7200% 120 10/1/07
99 Dunham 29 Dunham road (2L) Billerica MA 8.9700% 120 6/01/98
100 35 Dunham Road (2L) Billerica MA 8.9700% 120 6/1/07
101 Pacific View Apartments Pacifica CA 7.4600% 120 10/1/07
102 Sonoma Pointe Apartments El Verano CA 7.1800% 120 12/1/07
103 A-1 Self Storage - Anaheim Anaheim CA 7.3300% 120 1/1/08
104 Holiday Ranch & Happy Landings MHC West Palm Beach FL 8.6500% 120 10/31/06
106 Brewery apartments Chicago IL 7.1700% 120 2/1/08
107 Arbor Woods Mobile Home Community Ypsilanti MI 7.6700% 132 10/1/08
108 Gardens at Negley Pittsburgh PA 6.8700% 120 1/1/08
109 Coral Ridge Office Center (10) Fort Lauderdale FL 8.8700% 120 7/1/07
111 South Street Office Center Boston MA 8.5700% 120 7/1/07
112 Lake of the Pines (11) Indianapolis IN 7.8400% 180 12/1/12
113 Alameda Crossing Lakewood CO 8.5100% 120 6/1/07
115 Knox Village New Windsor NY 6.7600% 120 1/1/08
117 Monmouth MHP Monmouth Junction NJ 7.5900% 120 12/1/07
118 American Mini Storage Santa Rosa CA 8.0500% 120 11/1/07
119 Edison Lock-Up Self Storage Edison NJ 8.8100% 120 8/1/07
120 Saf Keep SSF - San Leandro San Leandro CA 9.1000% 120 4/1/07
121 The Oaks Office Building Creve Coeur MO 8.3200% 120 9/1/07
122 Vista Manor Mobile Home Park Vista CA 7.8500% 120 8/1/07
123 Nova Self-Storage Downey CA 7.9100% 120 11/1/07
124 Lantern Estates Indianapolis IN 7.7900% 120 10/1/07
126 A American Self Storage Inglewood CA 9.2200% 121 6/1/07
128 Woodshire Mobile Home Park Chesapeake VA 7.4600% 120 12/1/07
129 Leender's Portfolio (3G) Troutdale OR 7.7600% 120 10/1/07
130 Copps Food market Appleton WI 7.2600% 119 12/1/17
131 Harbour East MHC Chester VA 8.2400% 120 10/1/07
132 LAGO VISTA MHP Loveland CO 8.2200% 120 8/1/07
133 Stor N' Lok (2M) Montclair CA 7.4500% 120 1/1/08
134 A-American Pico (2M) Los Angeles CA 8.8100% 120 12/31/06
135 Storage Depot-North SSF (2N) Harrisburg PA 8.8700% 120 6/1/07
136 Storage Depot-West SSF (2N) Harrisburg PA 8.5400% 120 9/1/07
137 San Luis Obisbo Self Storage San Luis Obispo CA 9.7500% 120 5/31/06
138 West LA Self Storage Culver City CA 8.3700% 120 7/1/07
139 Willow Creek Apts. Grand Chute WI 6.9300% 120 2/1/08
140 Redhill MHP Gallup NM 7.8300% 120 12/1/07
142 North Valley Self Storage Facility Sylmar CA 7.9100% 120 11/1/07
144 Everett Portfolio (3H) Everett WA 8.1100% 120 10/1/07
145 Sheffield Lofts
Chicago IL 7.7300% 120 8/1/07
146 Paramount Self Storage Paramount CA 8.6500% 120 6/1/07
148 Mira Mesa Retirement Community Colorado Springs CO 6.9700% 120 1/1/08
149 City Gables Apts. Lauderdale MN 7.7100% 180 11/1/12
150 Windsorland MHC Windsor CA 8.5800% 120 9/1/07
151 Budget Mini Storage - Phoenix (2O) Phoenix AZ 7.6600% 180 1/1/13
152 ABQ Mini Storage (2O) Albuquerque NM 7.6600% 180 1/1/13
153 Safeway Self Storage Facility Los Angeles CA 8.1000% 120 10/1/07
154 Southgate Square Apartments Milwaukee WI 7.1700% 120 1/1/08
155 Palm Shadows Apartments Tucson AZ 7.3000% 120 2/1/08
156 Park Drive Apts. Boston MA 6.8700% 120 1/1/08
157 Continental Luxury Apartments Shaker Heights Oh 7.3950% 180 12/1/12
158 Dohr Apartments Greece NY 7.7000% 120 11/1/07
159 Belmont Self Storage Belmont CA 7.9200% 180 11/1/12
161 Hamilton House Weehawken NJ 7.9200% 120 7/1/07
162 Linkletter Self Storage Facility (2P)` Temecula CA 7.6500% 132 1/1/09
163 lyndie Office Building (2P) Temecula CA 8.0000% 120 1/1/08
164 Juanita Bay Office Building Kirkland WA 7.4900% 120 11/1/07
165 Fairway Greens Apartments Dallas TX 7.2500% 120 12/1/07
166 Rolling Hills Layton UT 8.1300% 120 9/1/07
167 Barnes & Noble Colorado Springs CO 7.3100% 120 12/1/17
168 Diamond Grove Tucson AZ 8.5300% 120 7/1/07
169 Yankee Mobile Home Park Kittery ME 7.9100% 120 10/1/07
170 Skylark Village I Mobile Home Park Aubun WA 7.8100% 120 10/1/07
171 Red Hill Estates Red Hill PA 9.4900% 120 4/1/07
172 Desert Springs Apartments Phoenix AZ 7.2500% 120 10/1/07
173 Lake Haven/Tall Pines (31) Berlin MD 8.7960% 120 4/1/07
174 Green Hill MHC Green Lane PA 8.9000% 120 5/1/07
175 Fenton Walgreens Fenton MO 7.1200% 235 9/1/17
176 Skylark II Village Mobile Home Park Auburn WA 7.8100% 120 2/1/08
178 Sorrento Valley Self Storage San Diego CA 7.4700% 120 2/1/08
179 Westminster Garden Vestal NY 6.8500% 240 2/1/18
181 Village Fair Shopping Center Warren MI 7.0800% 120 1/1/08
182 Just For Fest Colorado Springs Co CO 7.3100% 120 12/1/17
183 Airway Trade Center San Diego CA 7.2700% 121 2/1/08
184 989-1001 Watertown Street Newton MA 7.2100% 120 1/1/08
<CAPTION>
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Master
Prospectus Original Monthly Cut-Off Date Original Servicing
Loan No. Property Name Balance Payment Loan Balance Amortization Fee Rate
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
97 Triton Valley Estates - Derby (2K) 2,040,000.00 14,112.37 2,033,067.94 360 7.5
98 Stoneridge Apts. 4,575,000.00 33,020.33 4,556,849.20 360 7.5
99 Dunham 29 Dunham road (2L) 2,850,000.00 23,858.57 2,826,306.98 300 7.5
100 35 Dunham Road (2L) 1,600,000.00 13,394.29 1,588,698.63 300 7.5
101 Pacific View Apartments 4,400,000.00 30,957.32 4,381,773.33 360 7.5
102 Sonoma Pointe Apartments 4,350,000.00 29,762.41 4,338,233.36 360 7.5
103 A-1 Self Storage - Anaheim 4,300,000.00 31,586.13 4,287,578.03 300 7.5
104 Holiday Ranch & Happy Landings MHC 4,350,000.00 35,480.96 4,282,071.79 300 7.5
106 Brewery apartments 4,250,000.00 30,772.93 4,244,620.82 300 7.5
107 Arbor Woods Mobile Home Community 4,250,000.00 30,212.91 4,234,562.29 360 7.5
108 Gardens at Negley 4,240,000.00 29,873.96 4,227,151.89 300 7.5
109 Coral Ridge Office Center (10) 4,200,000.00 38,402.05 4,139,598.39 360 7.5
111 South Street Office Center 4,650,000.00 37,554.74 4,618,719.34 300 7.5
112 Lake of the Pines (11) 4,100,000.00 39,060.86 4,062,203.61 180 7.5
113 Alameda Crossing 4,100,000.00 31,554.51 4,077,048.52 360 7.5
115 Knox Village 4,000,000.00 27,899.43 3,987,737.37 300 7.5
117 Monmouth MHP 4,000,000.00 30,069.95 3,984,764.12 300 7.5
118 American Mini Storage 4,000,000.00 31,302.62 3,981,962.00 300 7.5
119 Edison Lock-Up Self Storage 4,000,000.00 33,048.96 3,973,649.24 300 7.5
120 Saf Keep SSF - San Leandro 4,000,000.00 32,473.13 3,975,549.15 360 7.5
121 The Oaks Office Building 3,990,000.00 30,172.11 3,974,688.07 360 7.5
122 Vista Manor Mobile Home Park 3,975,000.00 28,752.56 3,955,372.10 360 7.5
123 Nova Self-Storage 3,900,000.00 30,152.16 3,882,064.15 300 7.5
124 Lantern Estates 3,900,000.00 28,340.52 3,884,705.28 360 7.5
126 A American Self Storage 3,900,000.00 33,318.19 3,865,284.65 300 7.5
128 Woodshire Mobile Home Park 3,800,000.00 26,735.87 3,789,823.29 360 7.5
129 leender's Portfolio (3G) 3,800,000.00 27,533.59 3,785,023.35 360 7.5
130 Copps Food market 3,750,000.00 29,891.44 3,734,038.94 240 7.5
131 Harbour East MHC 3,700,000.00 29,147.94 3,681,034.98 300 7.5
132 LAGO VISTA MHP 3,700,000.00 27,718.87 3,683,038.12 360 7.5
133 Stor N' Lok (2M) 1,800,000.00 13,364.51 1,794,863.29 300 7.5
134 A-American Pico (2M) 1,900,000.00 15,698.26 1,874,312.76 300 7.5
135 Storage Depot-North SSF (2N) 2,475,000.00 20,550.23 2,454,087.12 300 7.5
136 Storage Depot-West SSF (2N) 1,150,000.00 9,291.13 1,143,238.92 300 7.5
137 San Luis Obisbo Self Storage 3,600,000.00 32,177.20 3,546,069.68 300 7.5
138 West LA Self Storage 3,550,000.00 28,275.23 3,521,192.23 300 7.5
139 Willow Creek Apts. 3,512,000.00 23,427.37 3,508,854.43 360 7.5
140 Redhill MHP 3,500,000.00 26,871.71 3,487,064.25 300 7.5
142 North Valley Self Storage Facility 3,400,000.00 26,286.50 3,384,363.61 300 7.5
144 Everett Portfolio (3H) 3,300,000.00 25,958.55 3,281,488.07 300 7.5
145 Sheffield Lofts 7.5
3,300,000.00 24,882.53 3,274,129.12 300 7.5
146 Paramount Self Storage 3,300,000.00 26,906.90 3,271,102.17 300 7.5
148 Mira Mesa Retirement Community 3,150,000.00 22,397.97 3,140,810.07 300 7.5
149 City Gables Apts. 3,150,000.00 22,479.98 3,140,948.31 360 7.5
150 Windsorland MHC 3,125,000.00 25,584.15 3,105,990.07 300 7.5
151 Budget Mini Storage - Phoenix (2O) 1,900,000.00 14,371.70 1,894,691.35 300 7.5
152 ABQ Mini Storage (2O) 1,200,000.00 9,076.86 1,196,647.17 300 7.5
153 Safeway Self Storage Facility 3,100,000.00 24,364.32 3,082,585.68 300 7.5
154 Southgate Square Apartments 3,004,518.00 20,536.03 2,998,138.72 360 7.5
155 Palm Shadows Apartments 3,000,000.00 21,780.94 2,996,469.06 300 7.5
156 Park Drive Apts. 3,000,000.00 19,889.45 2,993,411.60 360 7.5
157 Continental Luxury Apartments 3,000,000.00 22,165.26 2,988,288.15 300 7.5
158 Dohr Apartments 3,000,000.00 21,610.54 2,990,480.04 360 7.5
159 Belmont Self Storage 3,000,000.00 23,214.14 2,986,222.56 300 7.5
161 Hamilton House 3,000,000.00 22,995.72 2,973,835.81 300 7.5
162 Linkletter Self Storage Facility (2P)` 1,900,000.00 14,359.04 1,894,686.05 300 7.5
163 lyndie Office Building (2P) 1,020,000.00 7,563.56 1,018,014.80 360 7.5
164 Juanita Bay Office Building 2,900,000.00 21,608.43 2,885,850.85 300 7.5
165 Fairway Greens Apartments 2,825,000.00 19,464.80 2,817,200.93 360 7.5
166 Rolling Hills 2,825,000.00 20,985.42 2,813,734.36 360 7.5
167 Barnes & Noble 2,810,000.00 19,477.98 2,802,309.37 360 7.5
168 Diamond Grove 2,815,000.00 21,704.79 2,801,099.19 360 7.5
169 Yankee Mobile Home Park 2,800,000.00 21,647.71 2,783,846.96 300 7.5
170 Skylark Village I Mobile Home Park 2,800,000.00 21,459.85 2,783,619.01 300 7.5
171 Red Hill Estates 2,800,000.00 23,523.49 2,784,203.50 360 7.5
172 Desert Springs Apartments 2,760,000.00 19,016.94 2,748,159.12 360 7.5
173 Lake Haven/Tall Pines (31) 2,750,000.00 22,591.95 2,727,331.75 300 7.5
174 Green Hill MHC 2,750,000.00 22,889.88 2,724,210.47 300 7.5
175 Fenton Walgreens 2,725,000.00 21,649.74 2,719,518.59 236 7.5
176 Skylark II Village Mobile Home Park 2,725,000.00 20,885.03 2,709,057.79 300 7.5
178 Sorrento Valley Self Storage 3,600,000.00 26,776.62 3,595,833.38 300 7.5
179 Westminster Garden 2,700,000.00 20,844.25 2,694,568.25 240 7.5
181 Village Fair Shopping Center 2,650,000.00 17,912.70 2,644,521.85 360 7.5
182 Just For Fest 2,520,000.00 17,467.79 2,513,103.36 360 7.5
183 Airway Trade Center 2,500,000.00 18,265.47 2,492,733.36 300 7.5
184 989-1001 Watertown Street 2,500,000.00 17,158.50 2,494,715.30 360 7.5
</TABLE>
Page 2
<PAGE>
MORTGAGE LOAN SCHEDULE
<TABLE>
<CAPTION>
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Prospectus
Loan No. Property Name Borrower Name
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
185 Kimberly Place Kimberly Place LLC
186 Casa Del Sol Apartment Guy and Joan Gardner Partnership
187 Lake Geneva Apts. Welchmann Enterprises I LLC
188 Austin Commons Industrial Building La Salle National Bank and Austin Commons Limited Parnership
189 Fairway Executive Center Deerfield Equities, Ltd.
190 National City Self Storage Facility National City Self Storage Ltd.
191 Kawaihae Harbor Shopping Center Kohala South Investors, LLC
193 St. Vrain Village MHP St. Vrain Village Parnership
194 2000 E. Irvington Road 333 Fulton, Inc.
195 Safe Space Self Storage Safe Space Self Storage Associates
196 Arobor Oaks MHC Arbor Oaks I, LLC and Arbor Oaks II, LLC
198 Windsor Estates TJT Properties, Inc.
199 A-American Self Storage Facility-Palmdale Palmdale Resource Parners, L.P.
200 Maple Tree Plaza Maple Tree Plaza Parnership
201 17th & State Shops 17th & State Shops
203 Riverwood Riverwood Addition LLC
204 3500 W. Segerstrom 3400-3500 Segerstrom Ave. Property Co.
205 Oakwood MHP Oakwood Investment Parners
206 Calexico Mobile Home Park Calexico Mobile Home Park, L.P.
207 American Harbor Self Storage I-35 Warehouse Associates
208 Bennett Avenue apartments 56 Bennett, LLC
209 Friendly Village MHC Arlington MHP, Ltd.
210 Strawberry Hills Apartments Strawberry Hills Apartments, L.P).
211 Worthington Business Center Worthington Business Center Partnership
212 Rancho Del Rio MHP Rancho Del Rio Ltd.
213 A-1 Self Storage - El Cajon, CA El Cajon I, LLC
214 28308 Industry Drive (12) 28308 Industry Ave. Property Co.
215 Belmont Self Storage II Belmont Phase 2, LLC
217 Sunland Manor Sunland Manor LLC
218 Storage Solutions Elliot/Kyrene Self Storage LLC
219 Craycroft Gardens CG of Tucson, LLC
221 Tyler Mall Mini Storage Tyler Mall Mini Storage L.L.C.
222 Alyson Manor Mobile Estates Jacques Barbeau, Ida E. Cudmore, Thelma J. Muxlow and Stephen A. Hynes
223 Ogden Days Inn Jolley Taylor Company
225 99 Brainard Road (3J) Walbridge/Brainerd Associates LLC
226 Securgard Self Storage Securgard at Vista Ridge, Ltd.
227 Shattuck Avenue Self Storage Facility Guardsmen Storage Associates IV
228 Meadowbrook Village Meadwobrook LLC
231 Southshore Point South Shore Point Ltd Partnership
235 Royal Highlander Mobile Estate Investment Partners and Midwest Trust Company
236 932 N. Rush 932 North Rush, LLC
237 Fineberg Lancaster Apartments Lancaster Terrace Associates LLC
238 Fineberg Beacon Apartments Beacon 1589 Associates LLC
239 Centennial Estates Centennial Estates, LLC
240 Armored Self Storage Facility Granite-Reef Mini-Storage Inc.
241 Extra Space Self Storage Facility Extra Space Storage, Inc.
242 Portgage Green MHP Portage Green Associates, LLC
243 A-American El Cajon Greenfield Storage Partners, LLC
244 7 Mt. Hood Road Mt. Hood Associates, L.L.C
246 Ashe Road Bus. Park Ashe Road L.P.
247 Gilbert Self Storage Gilbert Storage Investors
248 Lamar Mini Storage Lamar Mini Storage, LLC
249 El Dorado Mobile Home Park El Dorado MHP Investors
250 Boston Market/Kinkos ACV-BC concord, LLC
252 Valencia Gardens Valencia Gardens L.L.C.
253 Providence Hill Office Building Virginia Acquisition No. 1 LLC
254 A-AMERICAN SELF STORAGE - Valencia Valencia Mini Storage
255 Calhoun Shores Apartments Calhoun Shores LLC
258 Stor-N-Lock #11 Stor-N-Lock Partners #11, LTD
260 3400 W. Segerstrom 3400-3500 Segerstrom Ave. Property Co.
261 Larkfield Self Storage Lorkfield 4-85
262 Bellmere Apartments Bellmere Properties, L.L.C.
263 Armored Mini Storage - 52nd Street Elwell Gerrand
264 CVS - Decatur Cherrry Street Investors
265 Southwest Professional Plaza Southwest Professional Plaza, Inc.
266 Tanlewood Ashley Enterprises, Inc.
267 Tracy Portfolio (3L) Montgomery County Self Storage, Inc.
268 Casa del Ray Apartments El Toledo, LLC
269 A-American SSF - National City National City West Self Storage, L.L.C.
270 B&R Mini Storage B&R Mini Storage
271 3630 West Garry Ave. 3630 W. Garry Ave. Property Co.
272 Twin Oaks Manor Twin Oaks Associates Ltd.
273 Etiwanda Self Storage Etiwanda Self Storage Company
274 Your Extra Attic - Stockbridge Your Extra Attic Stockbridge
275 116 Washington Street Washington Associates LLC
277 Newgate Apartments Norfolk LLC, a nevada LLC
<CAPTION>
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Prospectus Mortgage Original Maturity
Loan No. Property Name City State Rate Term Date
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
185 Kimberly Place Waukesha WI 6.8300% 120 2/1/08
186 Casa Del Sol Apartment Fesno CA 7.5000% 120 11/1/07
187 Lake Geneva Apts. Lake Geneva WI 7.2500% 120 12/1/07
188 Austin Commons Industrial Building Niles IL 8.6800% 120 6/1/07
189 Fairway Executive Center Deerfield Beach FL 7.2700% 120 1/1/08
190 National City Self Storage Facility National City CA 7.4900% 120 11/1/07
191 Kawalhae Harbor Shopping Center Kawaihae HI 8.2100% 120 10/1/07
193 St. Vrain Village MHP Longmont CO 7.9400% 119 10/1/07
194 2000 E. Irvington Road Tucson AZ 7.9100% 180 10/1/12
195 Safe Space Self Storage Okemos MI 8.2650% 120 8/1/07
196 Arobor Oaks MHC Zephyrhills FL 7.6500% 120 10/1/07
198 Windsor Estates Kalamazoo MI 8.9400% 120 6/1/07
199 A-American Self Storage Facility-Palmdale Palmdale CA 7.3600% 120 2/1/08
200 Maple Tree Plaza Boise ID 8.7200% 120 7/1/07
201 17th & State Shops Boise ID 8.7200% 120 7/1/07
203 Riverwood West Allis WI 7.0200% 120 2/1/08
204 3500 W. Segerstrom Santa Ana CA 7.3600% 144 12/1/09
205 Oakwood MHP Kenosha WI 7.9100% 120 10/1/07
206 Calexico Mobile Home Park Calexico CA 8.1300% 120 9/1/07
207 American Harbor Self Storage Dallas TX 7.8700% 120 10/1/07
208 Bennett Avenue apartments New York NY 7.5600% 120 10/1/07
209 Friendly Village MHC Arlington TX 8.1500% 120 8/1/07
210 Strawberry Hills Apartments Vallejo CA 7.1400% 120 12/1/07
211 Worthington Business Center Worthington OH 8.9700% 120 12/31/06
212 Rancho Del Rio MHP San Ysidro CA 8.5100% 119 7/1/07
213 A-1 Self Storage - El Cajon, CA El Cajon CA 7.1000% 120 1/1/08
214 28308 Industry Drive (12) Valencia CA 7.1000% 156 12/1/10
215 Belmont Self Storage II Belmont CA 7.9050% 180 12/1/12
217 Sunland Manor Mesa AZ 7.8500% 60 8/2/02
218 Storage Solutions Tempe AZ 8.7500% 120 6/1/07
219 Craycroft Gardens Tucson AZ 8.6400% 120 5/1/07
221 Tyler Mall Mini Storage Riverside CA 7.9100% 119 11/1/07
222 Alyson Manor Mobile Estates Richlane WA 7.8100% 119 10/1/07
223 Ogden Days Inn Ogden UT 8.6700% 120 10/1/17
225 99 Brainard Road (3J) Boston MA 7.0000% 120 1/1/08
226 Securgard Self Storage Lewisville TX 9.5620% 121 7/31/06
227 Shattuck Avenue Self Storage Facility Berkeley CA 8.1700% 120 1/1/08
228 Meadowbrook Village West Valley City UT 8.1400% 120 8/1/07
231 Southshore Point St. Francis WI 6.9900% 120 12/1/07
235 Royal Highlander Peoria IL 7.1700% 120 1/1/08
236 932 N. Rush Chicago IL 7.3500% 121 2/1/08
237 Fineberg Lancaster Apartments Brookline MA 7.0000% 120 2/1/08
238 Fineberg Beacon Apartments Brookline MA 7.0000% 120 2/1/08
239 Centennial Estates Sacramento CA 8.1300% 120 7/1/07
240 Armored Self Storage Facility Scottsdale AZ 7.9400% 120 8/1/07
241 Extra Space Self Storage Facility Lauderhill FL 7.9400% 120 11/1/07
242 Portgage Green MHP Arlington WA 8.1200% 120 9/1/07
243 A-American El Cajon El Cajon CA 9.3100% 120 7/1/07
244 7 Mt. Hood Road Boston MA 7.0000% 120 1/1/08
246 Ashe Road Bus. Park Bakersfield CA 7.3100% 120 1/1/08
247 Gilbert Self Storage Fullerton CA 8.7700% 180 8/1/12
248 Lamar Mini Storage Phoenix AZ 9.1000% 132 5/1/08
249 El Dorado Mobile Home Park Sacramento CA 8.0400% 120 9/1/07
250 Boston Market/Kinkos Concord NH 8.9700% 120 7/1/17
252 Valencia Gardens Tucson AZ 8.3900% 180 8/1/12
253 Providence Hill Office Building Fairfax VA 7.2700% 120 1/1/08
254 A-AMERICAN SELF STORAGE - Valencia Santa Clarita CA 8.4900% 121 12/31/07
255 Calhoun Shores Apartments Minneapolis MN 7.4100% 180 11/1/12
258 Stor-N-Lock #11 Boise ID 8.1100% 120 12/1/07
260 3400 W. Segerstrom Santa Ana CA 7.1600% 144 12/1/09
261 Larkfield Self Storage Santa Rosa CA 8.8100% 120 12/1/07
262 Bellmere Apartments Denton TX 7.6400% 120 11/1/07
263 Armored Mini Storage - 52nd Street Phoenix AZ 7.9400% 120 11/1/07
264 CVS - Decatur Atlanta GA 7.1000% 180 12/1/12
265 Southwest Professional Plaza Tucson AZ 8.9700% 120 7/1/07
266 Tanlewood Pembroke FL 9.0100% 120 6/1/07
267 Tracy Portfolio (3L) Spring TX 8.3000% 120 12/1/07
268 Casa del Ray Apartments Colorado Springs CO 7.2600% 120 1/1/08
269 A-American SSF - National City National City CA 7.4200% 120 2/1/08
270 B&R Mini Storage Longview WA 7.7700% 180 12/1/12
271 3630 West Garry Ave. Santa Ana CA 7.3600% 144 11/1/09
272 Twin Oaks Manor Akron OH 7.2700% 120 12/1/07
273 Etiwanda Self Storage Fontana CA 8.3400% 120 10/1/07
274 Your Extra Attic - Stockbridge Stockbridge GA 7.6300% 120 12/1/07
275 116 Washington Street Boston MA 7.0000% 120 1/1/08
277 Newgate Apartments Hampton VA 7.2700% 120 1/1/08
<CAPTION>
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Master
Prospectus Original Monthly Cut-Off Date Original Servicing
Loan No. Property Name Balance Payment Loan Balance Amortization Fee Rate
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
185 Kimberly Place 2,500,000.00 16,506.60 2,497,722.57 360 7.5
186 Casa Del Sol Apartment 2,500,000.00 17,859.03 2,491,798.02 360 7.5
187 Lake Geneva Apts. 2,500,000.00 19,912.21 2,485,203.11 240 7.5
188 Austin Commons Industrial Building 2,500,000.00 20,434.83 2,478,213.75 300 7.5
189 Fairway Executive Center 2,480,000.00 18,119.35 2,473,001.36 300 7.5
190 National City Self Storage Facility 2,450,000.00 17,288.78 2,441,948.83 360 7.5
191 Kawalhae Harbor Shopping Center 2,450,000.00 19,438.38 2,436,447.10 300 7.5
193 St. Vrain Village MHP 2,400,000.00 18,603.60 2,389,008.98 300 7.5
194 2000 E. Irvington Road 2,384,000.00 22,810.09 2,348,066.13 180 7.5
195 Safe Space Self Storage 2,375,000.00 18,749.50 2,357,908.26 300 7.5
196 Arobor Oaks MHC 2,360,000.00 16,917.52 2,350,527.75 360 7.5
198 Windsor Estates 2,350,000.00 19,624.65 2,330,367.25 300 7.5
199 A-American Self Storage Facility-Palmdale 2,325,000.00 17,124.45 2,322,135.55 300 7.5
200 Maple Tree Plaza 1,242,000.00 10,185.72 1,232,476.24 300 7.5
201 17th & State Shops 1,075,000.00 8,816.14 1,066,756.52 300 7.5
203 Riverwood 2,300,000.00 15,483.88 2,297,971.13 360 7.5
204 3500 W. Segerstrom 2,300,000.00 15,483.88 2,297,971.13 360 7.5
205 Oakwood MHP 2,300,000.00 16,908.44 2,291,158.84 360 7.5
206 Calexico Mobile Home Park 2,300,000.00 17,267.68 2,290,260.73 360 7.5
207 American Harbor Self Storage 2,300,000.00 17,720.25 2,288,658.88 300 7.5
208 Bennett Avenue apartments 2,300,000.00 17,244.41 288,063.90 300 7.5
209 Friendly Village MHC 2,300,000.00 17,980.92 2,283,138.94 300 7.5
210 Strawberry Hills Apartments 2,285,000.00 15,570.94 2,278,589.81 360 7.5
211 Worthington Business Center 2,300,000.00 19,254.29 2,269,693.35 300 7.5
212 Rancho Del Rio MHP 2,270,000.00 17,750.11 2,258,186.87 336 7.5
213 A-1 Self Storage - El Cajon, CA 2,250,000.00 16,646.21 2,243,552.97 300 7.5
214 28308 Industry Drive (12) 2,200,000.00 14,931.27 2,200,000.00 360 7.5
215 Belmont Self Storage II 2,200,000.00 17,001.52 2,191,944.79 300 7.5
217 Sunland Manor 2,180,000.00 15,768.70 2,169,235.51 360 7.5
218 Storage Solutions 2,150,000.00 17,676.09 2,131,475.18 300 7.5
219 Craycroft Gardens 2,130,000.00 17,352.76 2,092,315.73 300 7.5
221 Tyler Mall Mini Storage 2,100,000.00 16,094.89 2,090,205.44 300 7.5
222 Alyson Manor Mobile Estates 2,100,000.00 16,094.89 2,090,205.44 300 7.5
223 Ogden Days Inn 2,100,000.00 18,612.12 2,082,564.71 240 7.5
225 99 Brainard Road (3J) 2,080,455.00 13,977.43 2,075,953.03 360 7.5
226 Securgard Self Storage 2,100,000.00 18,474.90 2,067,302.17 300 7.5
227 Shattuck Avenue Self Storage Facility 2,070,000.00 16,367.25 2,064,498.01 300 7.5
228 Meadowbrook Village 2,070,000.00 15,555.57 2,059,182.69 345 7.5
231 Southshore Point 2,035,000.00 13,658.13 2,029,163.71 360 7.5
235 Royal Highlander 2,000,000.00 13,670.10 1,995,753.55 360 7.5
236 932 N. Rush 2,000,000.00 14,717.54 1,994,234.15 300 7.5
237 Fineberg Lancaster Apartments 2,000,000.00 13,436.89 1,998,229.77 360 7.5
238 Fineberg Beacon Apartments 2,000,000.00 13,436.89 1,998,229.77 360 7.5
239 Centennial Estates 2,000,000.00 14,858.95 1,989,293.12 360 7.5
240 Armored Self Storage Facility 2,000,000.00 15,503.00 1,983,793.49 292 7.5
241 Extra Space Self Storage Facility 2,000,000.00 24,318.69 1,955,232.39 120 7.5
242 Portgage Green MHP 1,950,000.00 14,626.10 1,941,266.85 345 7.5
243 A-American El Cajon 1,950,000.00 16,780.25 1,936,423.62 300 7.5
244 7 Mt. Hood Road 1,913,000.00 12,852.39 1,908,860.39 360 7.5
246 Ashe Road Bus. Park 1,900,000.00 13,170.16 1,896,027.01 360 7.5
247 Gilbert Self Storage 1,920,000.00 19,212.10 1,882,934.53 180 7.5
248 Lamar Mini Storage 1,900,000.00 16,075.04 1,882,752.51 300 7.5
249 El Dorado Mobile Home Park 1,880,000.00 14,560.00 1,868,016.84 300 7.5
250 Boston Market/Kinkos 1,881,000.00 15,746.66 1,867,152.27 300 7.5
252 Valencia Gardens 1,850,000.00 14,080.93 1,841,805.29 360 7.5
253 Providence Hill Office Building 1,800,000.00 13,151.14 1,794,768.02 300 7.5
254 A-AMERICAN SELF STORAGE - Valencia 1,800,000.00 14,481.96 1,794,721.95 300 7.5
255 Calhoun Shores Apartments 1,800,000.00 13,316.97 1,791,118.21 300 7.5
258 Stor-N-Lock #11 1,760,000.00 13,844.56 1,753,885.43 300 7.5
260 3400 W. Segerstrom 1,725,000.00 11,778.59 1,720,319.59 360 7.5
261 Larkfield Self Storage 1,725,000.00 14,396.32 1,719,765.92 290 7.5
262 Bellmere Apartments 1,670,000.00 11,959.60 1,664,647.42 360 7.5
263 Armored Mini Storage - 52nd Street 1,650,000.00 12,789.97 1,642,443.69 300 7.5
264 CVS - Decatur 1,650,000.00 15,014.48 1,633,967.33 180 7.5
265 Southwest Professional Plaza 1,615,000.00 13,519.86 1,603,110.53 300 7.5
266 Tanlewood 1,600,000.00 13,438.10 1,586,785.17 300 7.5
267 Tracy Portfolio (3L) 1,580,000.00 12,632.51 1,574,645.14 300 7.5
268 Casa del Ray Apartments 1,553,550.00 11,340.34 1,549,160.99 300 7.5
269 A-American SSF - National City 1,550,000.00 11,477.62 1,548,106.55 300 7.5
270 B&R Mini Storage 1,550,000.00 11,838.07 1,544,228.12 300 7.5
271 3630 West Garry Ave. 1,550,000.00 10,797.76 1,544,794.38 360 7.5
272 Twin Oaks Manor 1,550,000.00 12,364.69 1,540,713.57 240 7.5
273 Etiwanda Self Storage 1,540,000.00 12,354.69 1,531,634.31 300 7.5
274 Your Extra Attic - Stockbridge 1,525,000.00 11,504.72 1,519,220.50 300 7.5
275 116 Washington Street 1,519,000.00 10,205.32 1,515,712.98 360 7.5
277 Newgate Apartments 1,505,000.00 10,995.82 1,500,625.49 300 7.5
</TABLE>
Page 3
<PAGE>
MORTGAGE LOAN SCHEDULE
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
Prospectus
Loan No. Property Name Borrower Name
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
278 Roosevelt Apartments Roosevelt Investments, Ltd.
279 Park Place Plaza Shopping Center Park Place Partners, LLC
280 Quinsigamond Plaza Forecast Shrewsbury Limited Parnership
281 Hav-A-Storage Self Storag Hav-A-Storage, Inc.
282 Brackett Air buisness Park Brackett Air Business Park L.L.C.
283 Van Buren Self Storage Van Buren Self Storage, Inc.
284 5 Wallbridge Street(3M) Walbridge/Commonwealth Associates L.L.C.
285 EZ Storage Center Self Storage Facility Pangeea Associates
286 Bethel Self Storage Four Winds Associates, Inc.
287 Handi Self Storage Kentucky Storage Associates, LTD
288 Green Valley Storage (Windmill) Windmill Capital Partners
289 Woodgate Mobile Home Village Woodgate Mobile Home Village, Inc.
290 Aire Libre Apartments SJAL, LLC
292 Brookhaven MHC Brookhaven on Baseline, LLC
294 Heritage/Gibson Mobile Home Village Heritage Mobile Home Village, Inc. and
Gibson Mobile Home Estates Inc., Jointly and Severally
295 River Point Condos Wedgewood Apartments Limited Part.
296 Villa Vallejo Villa Vallejo, L.L.C.
297 CVS - Austell Cherry Street Investors, L.L.C.
299 1334 Commonwealth Avenue Commonwealth 1334 Associates LLC
300 Mini U Novi DSI Growth and Income Fund
301 Stor-N-Lock #10 Stor-N-Lock Partners #10, LTD.
302 2nd Garage Self Storage Santa Fe Storage Partners, L.L.C.
303 Virginia Court Apartments Virginia Castle, L.L.C.
304 Oakview Manor Apartments Oakview Manor Company
305 Timberline Forest Apartments Sweet Melissa's Liquidation Warehouse, Inc.
306 The Village Plaza The Plaza Group
307 9 Egremont Road Egremont Associates LLC
308 Affordable Self Storage Space Station, Inc.
309 6630 Baltimore National Pike Professional Enterprises Partnership
310 4 Vinal Street Vinal Associates, L.L.C.
311 Whiskey Bottom Business Center WBBC Associates Limited Partnership
312 Royal Estates MHP Kankakee Investment Partners
313 Pep Boys - Streamwood (13) Old Second National Bank of Aurora
314 Orange Avenue Industrial Park Orange Avenue Self-Storage, Inc.
315 Men's Warehouse DHJ Memphis, L.L.C.
316 Pier 1 - Saginaw A.C. Shoemake, as Trustee of the A.C. Shoemake Living Trust
317 Boulevard Apartments Boulevard Investments, Ltd.
318 Stor-N-Lock #8 Stor-N-Lock Partners #8, LTD
319 Park Plaza Retail Center BYS Co.
320 Claremont Self Storage Claremont Mini-Storage Co.
321 Shamrock MHC Semain Brothers Partnership
322 Security Self Storage Facility Security Self Storage, L.L.C.
323 Lock It Up Self Storage Facility Lock-It-Up Self Storage, L.L.C.
324 CVS - Bethsaida Cherry Street Investors
325 Summer Wind Summer Winds Associates, LP
326 Victoria Square Apartments Victoria Apartments L.L.C., a Nevada L.L.C.
327 Foxfire Apartments Newcomb Property, L.L.C.
328 Glen Arbor Apartments Glen Arbor LLC
329 Pier 1 - Lewisville G&M Pier Lewisville, L.L.C.
331 Emerald Lakes Mobile Home Park Emerald Lakes Mobile Park, Inc.
332 Your Extra Attic - Duluth 3280 Peachtree Industrial Associates II
333 Pier 1 - Canton A.C. Shoemake, as trustee of the A.C. Shoemake Living Trust
334 DeSoto Estates MHP Desoto Crest Ltd.
336 Hide-Away-Hills MHP Inidiana Mobile Partners
337 AAA Interstate SSF DSI Special Situations Fund III
338 Your Extra Attic - Winters Chapel Your Extra Attic Winters Chapel
339 ABC Mini Storage Richcroft, L.L.C.
340 Pep Boys - Gardena (14) MB Properties L.L.C.
341 Eastwood MHP Eastwood Hills, Inc.
342 Bama Self Storage Bama Mini Storage, L.L.C.
343 Thomas Apartments Thomas Apartments, L.C.
345 Missouri Self Storage Facility Missouri Investors L.L.C.
346 A-American Self Storage-Bent Avenue Bent Avenue Storage Parners
347 The Pine Garden apartments SJPG, L.L.C.
348 Stor-N-Lock #7 Stor-N-Lock Parners #7, LTD
349 Green Valley Self Storage Green Valley Marine Capital Partners, LTD
350 130 Englewood Street Englewood Associates L.L.C.
352 1375 Commonwealth Avenue Commonwealth 1375 Associates LLC
353 Stor-N-Lock #9 Stor-N-Lock #9, LTD
354 Mid Cajon Apartments Mid Cajon/Home Avenue LLC
355 Payless Shoe Source GMP Partners
356 Panama City Mobile Home Estates Panama City Mobile Estates
357 Your Extra Attic - Norcross 3280 Peachtree Industrial Associates Limited
358 Terrace View Center Mid Cajon/Home Avenue LLC, A California LLC
359 Village Corner Village Corner No. 1 LLC, A Nevada LLC
360 1381 Commonwealth Avenue Commonwealth 1381 Associates LLC
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
Prospectus Mortgage Original Maturity
Loan No. Property Name City State Rate Term Date
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
278 Roosevelt Apartments Cleveland Heights OH 7.3500% 180 12/1/12
279 Park Place Plaza Shopping Center Colorado Springs CO 7.0100% 120 12/1/07
280 Quinsigamond Plaza Shrewsbury MA 8.4200% 120 9/1/07
281 Hav-A-Storage Self Storag Lake Havasu City AZ 8.3600% 120 10/1/07
282 HBrackett Air buisness Park La Veme CA 7.9900% 120 10/1/07
283 Van Buren Self Storage Riverside CA 9.6100% 120 7/1/07
284 5 Wallbridge Street(3M) Boston MA 7.0000% 120 1/1/08
285 EZ Storage Center Self Storage Facility Reno NV 7.8700% 120 11/1/07
286 Bethel Self Storage Bethel CT 9.5900% 120 6/1/07
287 Handi Self Storage Lexington KY 9.6200% 120 4/30/07
288 Green Valley Storage (Windmill) Henderson NV 7.2900% 121 2/1/08
289 Woodgate Mobile Home Village Houston TX 7.6700% 120 1/1/08
290 Aire Libre Apartments Phoenix AZ 7.9600% 120 9/1/07
292 Brookhaven MHC Beaverton OR 8.7100% 132 1/31/08
294 Heritage/Gibson Mobile Home Village
Williamsburg VA 7.8100% 120 12/1/07
295 River Point Condos Dallas TX 7.6100% 120 11/1/07
296 Villa Vallejo Phoenix AZ 7.7500% 120 9/1/07
297 CVS - Austell Atlanta GA 7.1000% 180 12/1/12
299 1334 commonwealth Avenue Boston MA 7.0000% 120 1/1/08
300 Mini U Novi Novi MI 8.1000% 120 8/1/07
301 Stor-N-Lock #10 Salt Lake City UT 8.0100% 120 12/1/07
302 2nd Garage Self Storage Santa Fe Springs CA 9.6670% 120 7/31/06
303 Virginia Court Apartments Long Branch NJ 7.6500% 120 10/1/07
304 Oakview manor Apartments Racine WI 7.1700% 120 1/1/08
305 Timberline Forest Apartments Houston TX 7.2200% 120 12/1/17
306 The Village Plaza San Jose CA 8.0000% 120 10/1/07
307 9 Egremont Road Boston MA 7.0000% 120 1/1/08
308 Affordable Self Storage Loganville GA 9.4000% 120 6/1/97
309 6630 Baltimore National Pike Catonsville MD 9.4700% 120 5/1/07
310 4 Vinal Street Boston MA 7.0000% 120 1/1/08
311 Whiskey Bottom Business Center Laurel MD 9.1200% 120 5/1/07
312 Royal Estates MHP Kankakee IL 7.1700% 120 1/1/08
313 Pep Boys - Streamwood (13) Streamwood IL 7.2300% 226 12/1/16
314 Orange Avenue Industrial Park Tallahassee FL 9.8800% 120 4/1/07
315 Men's Warehouse Memphis TN 7.4800% 120 2/1/18
316 Pier 1 - Saginaw Saginaw MI 7.5300% 120 12/1/17
317 Boulevard Apartments Cleveland Heights OH 7.3500% 180 12/1/12
318 Stor-N-Lock #8 Sandy UT 8.0100% 120 12/1/07
319 Park Plaza Retail Center Tempe AZ 8.4400% 120 11/1/07
320 Claremont Self Storage Claremont CA 8.5400% 120 10/1/07
321 Shamrock MHC Windsor CA 8.4600% 119 5/1/07
322 Security Self Storage Facility Napa CA 8.8000% 120 8/1/07
323 Lock It Up Self Storage Facility Ogden UT 8.0400% 120 10/1/07
324 CVS - Bethsaida Atlanta GA 7.1000% 180 12/1/12
325 Summer Wind Mesilla Park NM 9.2400% 120 5/1/07
326 Victoria Square Apartments Victoria TX 7.2700% 121 2/1/08
327 foxfire Apartments Denton TX 7.6100% 120 10/1/07
328 Glen Arbor Apartments Phoenix AZ 9.0100% 119 4/1/07
329 Pier 1 - Lewisville Lewisville TX 7.6800% 120 11/1/17
331 Emerald Lakes Mobile Home Park Davenport FL 7.0500% 120 1/1/08
332 Your Extra Attic - Duluth Duluth GA 7.7300% 120 12/1/07
333 Pier 1 - Canton Canton OH 7.5300% 120 12/1/17
334 DeSoto Estates MHP De Soto TX 8.1100% 120 11/1/07
336 Hide-Away-Hills MHP Wayne IN 7.2200% 120 1/1/08
337 AAA Interstate SSF Lancaster CA 8.2300% 120 9/1/07
338 Your Extra Attic - Winters Chapel Doraville GA 7.6300% 120 12/1/07
339 ABC Mini Storage Baton Rouge LA 9.6700% 120 5/1/07
340 Pep Boys - Gardena (14) Gardena CA 7.1770% 161 6/1/11
341 Eastwood MHP Conroe TX 7.9100% 120 11/1/07
342 Bama Self Storage Tuscaloosa AL 9.6700% 120 7/1/07
343 Thomas Apartments Provo UT 8.4700% 120 7/1/07
345 Missouri Self Storage Facility Phoenix AZ 7.8000% 83 12/1/04
346 A-American Self Storage-Bent Avenue San Marcos CA 7.4200% 120 2/1/08
347 The Pine Garden apartments Mesa AZ 7.9600% 120 9/1/07
348 Stor-N-Lock #7 Taylorsville UT 8.0100% 120 12/1/07
349 Green Valley Self Storage Henderson NV 7.3900% 120 1/1/08
350 130 Englewood Street Boston MA 7.0000% 120 1/1/08
352 1375 Commonwealth Avenue Boston MA 7.0000% 120 1/1/08
353 Stor-N-Lock #9 Salt Lake City UT 8.0100% 120 12/1/07
354 Mid Cajon Apartments San Diego CA 7.2700% 120 1/1/08
355 Payless Shoe Source Colombus OH 7.3800% 120 2/1/18
356 Panama City Mobile Home Estates Springfield FL 9.3600% 120 12/1/07
357 Your Extra Attic - Norcross Norcross GA 8.1800% 120 12/1/07
358 Terrace View Center San Diego CA 7.2700% 120 1/1/08
359 Village Corner Montgomery OH 7.2700% 121 2/1/08
360 1381 Commonwealth Avenue Boston MA 7.0000% 120 1/1/08
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
Master
Prospectus Original Monthly Cut-Off Date Original Servicing
Loan No. Property Name Balance Payment Loan Balance Amortization Fee Rate
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
278 Roosevelt Apartments 1,500,000.00 11,038.16 1,494,110.58 300 7.5
279 Park Place Plaza Shopping Center 1,500,000.00 10,704.64 1,493,850.12 300 7.5
280 Quinsigamond Plaza 1,500,000.00 11,997.65 1,491,007.67 300 7.5
281 Hav-A-Storage Self Storag 1,500,000.00 12,054.27 1,491,874.27 300 7.5
282 HBrackett Air buisness Park 1,500,000.00 11,677.76 1,491,442.38 300 7.5
283 Van Buren Self Storage 1,500,000.00 13,220.33 1,490,062.15 300 7.5
284 5 Wallbridge Street(3M) 1,491,545.00 10,020.87 1,488,317.39 360 7.5
285 EZ Storage Center Self Storage Facility 1,500,000.00 14,316.87 1,481,914.68 180 7.5
286 Bethel Self Storage 1,500,000.00 13,199.42 1,488,737.46 300 7.5
287 Handi Self Storage 1,500,000.00 13,230.79 1,487,497.69 300 7.5
288 Green Valley Storage (Windmill) 1,475,000.00 10,796.00 1,470,721.47 300 7.5
289 Woodgate Mobile Home Village 1,470,000.00 11,128.95 1,465,896.88 300 7.5
290 Aire Libre Apartments 1,450,000.00 10,710.99 1,443,334.17 346 7.5
292 Brookhaven MHC 1,498,000.00 11,086.46 1,403,225.25 360 7.5
294 Heritage/Gibson Mobile Home Village 7.5
1,400,000.00 10,729.93 1,394,812.73 300 7.5
295 River Point Condos 1,400,000.00 9,996.60 1,395,490.36 360 7.5
296 Villa Vallejo 1,400,000.00 10,673.73 1,390,363.74 300 7.5
297 CVS - Austell 1,385,000.00 12,603.06 1,371,542.28 180 7.5
299 1334 commonwealth Avenue 1,353,000.00 9,090.06 1,350,072.25 360 7.5
300 Mini U Novi 1,350,000.00 10,509.11 1,340,023.51 300 7.5
301 Stor-N-Lock #10 1,325,000.00 11,183.02 1,317,770.17 240 7.5
302 2nd Garage Self Storage 1,350,000.00 12,782.52 1,317,331.94 240 7.5
303 Virginia Court Apartments 1,325,000.00 10,013.54 1,317,072.38 300 7.5
304 Oakview manor Apartments 1,305,258.00 8,921.50 1,302,488.64 360 7.5
305 Timberline Forest Apartments 1,300,000.00 8,930.34 1,296,395.34 360 7.5
306 The Village Plaza 1,300,000.00 10,129.49 1,292,594.31 300 7.5
307 9 Egremont Road 1,295,000.00 8,700.39 1,292,197.70 360 7.5
308 Affordable Self Storage 1,300,000.00 11,267.82 1,289,928.14 300 7.5
309 6630 Baltimore National Pike 1,300,000.00 11,330.96 1,288,893.32 300 7.5
310 4 Vinal Street 1,268,000.00 8,518.99 1,265,256.13 360 7.5
311 Whiskey Bottom Business Center 1,275,000.00 10,804.72 1,263,463.72 300 7.5
312 Royal Estates MHP 1,250,000.00 9,050.86 1,246,329.03 300 7.5
313 Pep Boys - Streamwood (13) 1,225,000.00 9,139.25 1,223,022.68 226 7.5
314 Orange Avenue Industrial Park 1,230,000.00 11,772.14 1,211,139.78 240 7.5
315 Men's Warehouse 1,200,000.00 8,852.29 1,198,627.71 300 7.5
316 Pier 1 - Saginaw 1,200,000.00 8,973.21 1,195,500.40 300 7.5
317 Boulevard Apartments 1,200,000.00 8,830.53 1,195,288.46 300 7.5
318 Stor-N-Lock #8 1,200,000.00 10,128.02 1,193,452.23 240 7.5
319 Park Plaza Retail Center 1,200,000.00 9,709.04 1,194,876.68 300 7.5
320 Claremont Self Storage 1,200,000.00 9,791.32 1,193,660.49 300 7.5
321 Shamrock MHC 1,200,000.00 9,192.97 1,193,213.42 360 7.5
322 Security Self Storage Facility 1,200,000.00 9,906.52 1,192,081.86 300 7.5
323 Lock It Up Self Storage Facility 1,200,000.00 11,573.14 1,182,103.58 180 7.5
324 CVS - Bethsaida 1,180,000.00 10,737.63 1,168,534.22 180 7.5
325 Summer Wind 1,180,000.00 10,097.16 1,169,530.74 300 7.5
326 Victoria Square Apartments 1,150,000.00 8,402.12 1,146,657.35 300 7.5
327 foxfire Apartments 1,150,000.00 8,211.50 1,145,353.53 360 7.5
328 Glen Arbor Apartments 1,140,000.00 9,180.90 1,133,571.52 360 7.5
329 Pier 1 - Lewisville 1,130,000.00 8,562.44 1,124,632.28 300 7.5
331 Emerald Lakes Mobile Home Park 1,115,000.00 7,986.11 1,111,684.45 300 7.5
332 Your Extra Attic - Duluth 1,110,000.00 8,447.91 1,105,845.81 300 7.5
333 Pier 1 - Canton 1,100,000.00 8,225.44 1,095,875.38 300 7.5
334 DeSoto Estates MHP 1,100,000.00 8,652.85 1,095,081.32 300 7.5
336 Hide-Away-Hills MHP 1,050,000.00 7,212.97 1,047,782.87 360 7.5
337 AAA Interstate SSF 1,050,000.00 8,345.00 1,043,270.75 300 7.5
338 Your Extra Attic - Winters Chapel 1,030,000.00 7,770.40 1,026,096.47 300 7.5
339 ABC Mini Storage 1,030,000.00 9,121.09 1,021,485.74 300 7.5
340 Pep Boys - Gardena (14) 1,000,000.00 9,554.67 993,290.90 161 7.5
341 Eastwood MHP 1,000,000.00 7,731.32 995,401.08 300 7.5
342 Bama Self Storage 1,000,000.00 8,855.43 993,440.45 300 7.5
343 Thomas Apartments 967,800.00 7,420.98 962,962.34 360 7.5
345 Missouri Self Storage Facility 900,000.00 6,891.78 897,520.12 300 7.5
346 A-American Self Storage-Bent Avenue 900,000.00 6,664.42 898,900.58 300 7.5
347 The Pine Garden apartments 900,000.00 7,567.53 890,463.19 240 7.5
348 Stor-N-Lock #7 850,000.00 7,174.02 845,361.98 240 7.5
349 Green Valley Self Storage 825,000.00 6,092.73 822,631.27 300 7.5
350 130 Englewood Street 815,000.00 5,475.53 813,236.39 360 7.5
352 1375 Commonwealth Avenue 750,000.00 5,038.84 748,377.04 360 7.5
353 Stor-N-Lock #9 700,000.00 5,908.01 696,180.47 240 7.5
354 Mid Cajon Apartments 680,000.00 4,968.21 678,023.47 300 7.5
355 Payless Shoe Source 675,000.00 4,935.62 674,215.63 300 7.5
356 Panama City Mobile Home Estates 650,000.00 5,674.51 648,004.99 300 7.5
357 Your Extra Attic - Norcross 650,000.00 5,143.88 647,699.98 300 7.5
358 Terrace View Center 640,000.00 4,675.96 638,139.74 300 7.5
359 Village Corner 625,000.00 4,566.37 623,183.34 300 7.5
360 1381 Commonwealth Avenue 515,000.00 3,460.00 513,885.58 360 7.5
</TABLE>
Page 4
<PAGE>
MORTGAGE LOAN SCHEDULE
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
Prospectus
Loan No. Property Name Borrower Name
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C>
361 Pinegrove Place Waveland & Pinegrove Building, L.L.C.
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
Prospectus Mortgage Original Maturity
Loan No. Property Name City State Rate Term Date
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
361 Pinegrove Place Chicago IL 7.6600% 120 12/1/07
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
Master
Prospectus Original Monthly Cut-Off Date Original Servicing
Loan No. Property Name Balance Payment Loan Balance Amortization Fee Rate
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
361 Pinegrove Place 500,000.00 3,782.03 498,112.50 300 7.5
----------------
1,081,789,828.82
================
</TABLE>
Page 5
<PAGE>
Footnotes to Mortgage Loan Schedule
1 N/A
2 Sets of Mortgage Loans that have identical alphabetical coding designates
multiple loans that are cross-collateralized and cross-defaulted.
3 Mortgage Loan is secured by liens on multiple properties. Property type,
address, and year built indicated are for the largest of such properties.
All other property information is aggregated for the multiple properties,
which are summarized below:
(3A) Secured by liens on six self storage facilities.
(3B) Secured by liens on six retail properties.
(3C) N/A
(3D) N/A
(3E) N/A
(3F) Secured by liens on three manufactured housing communities.
(3G) Secured by liens on three manufactured housing communities.
(3H) Secured by liens on two self storage facilities.
(3I) Secured by liens on two manufactured housing communities.
(3J) Secured by liens on three multi-family properties.
(3K) N/A
(3L) Secured by liens on one office facility and one self storage
facility.
(3M) Secured by liens on two multi-family properties.
4 N/A
5 N/A
6 N/A
7 At loan closing, $100,000 of loan proceeds were set aside in an escrow
account. The escrow will be released to borrower upon satisfaction of a
minimum 1.20x debt service coverage, and a maximum 80% loan to value, as
determined by an updated appraisal, so long as such conditions are met
within six months of the loan closing date. Any portion of the escrow which
the borrower does not qualify for will be applied to partially repay the
loan, subject to a yield maintenance penalty. Debt service coverage and
loan to value presented reflect full loan amount.
8 Loan was interest only until 1/1/98.
9 At loan closing, $700,000 of loan proceeds were set aside in an escrow
account. The escrow will be released to the borrower upon satisfaction of a
minimum 1.25x debt service coverage, and a maximum 80% loan to value, as
determined by an appraisal, so long as such conditions are met by 7/1/99.
Any portion of the escrow which the borrower does not qualify for will be
applied to partially repay the loan. Debt service coverage and loan to
value presented reflect full loan amount. Loan is interest only unitl
8/1/99.
10 Note provides for an additional $5,000 per month of principal amortization
in excess of the calculated payment for the first 48 payments.
<PAGE>
Footnotes to Mortgage Loan Schedule
11 At loan closing, $200,000 of loan proceeds were set aside in an escrow
account. The escrow will be released to borrower upon satisfaction of a
minimum of 1.20x debt service coverage, and a maximum 80% loan to value, as
determined by appraisal, as long as such conditions are met by 9/8/98. Any
portion of the escrow which the borrower does not qualify for will be
applied to partially repay the loan. Debt service coverage and loan to
value presented reflect full amount.
12 Loan is interest only until 1/1/2000.
13 Loan has stepped monthly principal and interest payments as follows:
3/98 $9,603.96
4/98 - 12/01 $9,139.25
1/2 - 12/6 $9,870.39
1/12 - maturity $11,300.66
14 Loan has stepped monthly principal and interest payments as follows:
2/98 $7,705.38
3/98 - 6/01 $9,554.67
7/1 - 4/4 $10,510.14
5/4 - maturity $9,497.28
