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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported): March 3, 1998
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Morgan Stanley Capital I Inc. (as depositor under a Pooling and Servicing
Agreement to be dated as of March 1, 1998 providing for, inter alia, the
issuance of Commercial Mortgage Pass-Through Certificates, Series 1998-WF1)
Morgan Stanley Capital I Inc.
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(Exact name of registrant as specified in its charter)
Delaware 333-45467 13-3291626
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(State or other jurisdiction (Commission) (I.R.S. employer
of incorporation) file number) identification no.)
1585 Broadway, New York, New York 10036
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(Address of principal executive offices) (Zip code)
Registrant's telephone number, including area code: (212) 296-7000
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(Former name or former address, if changed since last report)
Exhibit Index Located on Page 2
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Items 1 through 6 and Item 8 are not included because they are not applicable.
Item 7. Financial Statements, Pro Forma Financial Information and Exhibits.
(a) Not applicable
(b) Not applicable
(c) Exhibits
Sequential
Numbered
Exhibit Exhibit
Number Page
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4.1 Pooling and Servicing Agreement dated as of March 1, 1998
among Morgan Stanley Capital I Inc., Depositor, Wells Fargo
Bank, National Association, Master Servicer, CRIIMI MAE
Services Limited Partnership, Special Servicer, LaSalle
National Bank, Trustee, and ABN AMRO Bank N.V. Fiscal Agent
(providing for, inter alia, the issuance of Commercial
Mortgage Pass-Through Certificates, Series 1998-WF1)
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of
1934, the registrant has duly caused this report to be signed on its behalf by
the undersigned thereunto duly authorized.
MORGAN STANLEY CAPITAL I INC.
By: /s/ Russell A. Rahbany
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Name: Russell A. Rahbany
Title: Vice President
Dated: March 3, 1998
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Exhibit 4.1
Pooling and Servicing Agreement
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MORGAN STANLEY CAPITAL I INC.,
as Depositor,
and
WELLS FARGO BANK, NATIONAL ASSOCIATION,
as Master Servicer,
and
CRIIMI MAE SERVICES LIMITED PARTNERSHIP
as Special Servicer,
and
LASALLE NATIONAL BANK,
as Trustee,
and
ABN AMRO BANK N.V.,
as Fiscal Agent,
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POOLING AND SERVICING AGREEMENT
Dated as of March 1, 1998
----------------------------------------
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 1998-WF1
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TABLE OF CONTENTS
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ARTICLE I DEFINITIONS................................................................................4
Section 1.1 Definitions...........................................................................4
Section 1.2 Calculations Respecting Mortgage Loans...............................................45
Section 1.3 Calculations Respecting Accrued Interest.............................................45
Section 1.4 Interpretation.......................................................................45
ARTICLE II DECLARATION OF TRUST; ISSUANCES OF CERTIFICATES...........................................46
Section 2.1 Conveyance of Mortgage Loans.........................................................46
Section 2.2 Acceptance by Trustee................................................................48
Section 2.3 Sellers' Repurchase of Mortgage Loans for Document Defects and Breaches of
Representations and Warranties.......................................................50
Section 2.4 Representations and Warranties.......................................................52
ARTICLE III THE CERTIFICATES..........................................................................53
Section 3.1 The Certificates.....................................................................53
Section 3.2 Registration.........................................................................54
Section 3.3 Transfer and Exchange of Certificates................................................55
Section 3.4 Mutilated, Destroyed, Lost or Stolen Certificates....................................60
Section 3.5 Persons Deemed Owners................................................................60
Section 3.6 Access to List of Certificateholders' Names and Addresses............................60
Section 3.7 Book-Entry Certificates..............................................................61
Section 3.8 Notices to Clearing Agency...........................................................64
Section 3.9 Definitive Certificates..............................................................64
Section 3.10 Appointment of Paying Agent..........................................................65
ARTICLE IV ADVANCES..................................................................................65
Section 4.1 P&I Advances by Master Servicer......................................................65
Section 4.2 Servicing Advances...................................................................66
Section 4.3 Advances by Trustee and Fiscal Agent.................................................66
Section 4.4 Evidence of Nonrecoverability........................................................67
Section 4.5 Interest on Advances; Calculation of Outstanding Advances with Respect to a
Mortgage Loan........................................................................67
Section 4.6 Reimbursement of Advances and Advance Interest.......................................68
Section 4.7 Fiscal Agent Termination Event.......................................................69
Section 4.8 Procedure Upon Termination Event.....................................................70
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Section 4.9 Merger or Consolidation of Fiscal Agent..............................................70
Section 4.10 Limitation on Liability of the Fiscal Agent and Others...............................70
Section 4.11 Indemnification of Fiscal Agent......................................................71
ARTICLE V ADMINISTRATION OF THE TRUST...............................................................72
Section 5.1 Collections..........................................................................72
Section 5.2 Application of Funds in the Certificate Account......................................74
Section 5.3 Distribution Account.................................................................76
Section 5.4 Trustee Reports......................................................................77
Section 5.5 Trustee Tax Reports..................................................................79
ARTICLE VI DISTRIBUTIONS.............................................................................79
Section 6.1 Distributions Generally..............................................................79
Section 6.2 REMIC I..............................................................................80
Section 6.3 REMIC II.............................................................................80
Section 6.4 REMIC III............................................................................85
Section 6.5 Allocation of Realized Losses, Expense Losses and Shortfalls Due to
Nonrecoverability....................................................................89
Section 6.6 Net Aggregate Prepayment Interest Shortfalls.........................................91
Section 6.7 Adjustment of Servicing Fees.........................................................92
Section 6.8 Appraisal Reductions.................................................................92
Section 6.9 Compliance with Withholding Requirements.............................................92
Section 6.10 Prepayment Premiums..................................................................92
ARTICLE VII CONCERNING THE TRUSTEE AND THE FISCAL AGENT...............................................93
Section 7.1 Duties of Trustee and the Fiscal Agent...............................................93
Section 7.2 Certain Matters Affecting the Trustee and the Fiscal Agent...........................95
Section 7.3 Trustee and Fiscal Agent Not Liable for Certificates or Interests or Mortgage
Loans................................................................................96
Section 7.4 Trustee and the Fiscal Agent May Own Certificates....................................97
Section 7.5 Eligibility Requirements for Trustee and Fiscal Agent................................98
Section 7.6 Resignation and Removal of Trustee or Fiscal Agent...................................98
Section 7.7 Successor Trustee or Fiscal Agent....................................................99
Section 7.8 Merger or Consolidation of Trustee..................................................100
Section 7.9 Appointment of Co-Trustee, Separate Trustee or Custodian............................100
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Section 7.10 Authenticating Agents...............................................................102
Section 7.11 Indemnification of Trustee..........................................................103
Section 7.12 Fees and Expenses of Trustee and the Fiscal Agent...................................104
Section 7.13 Collection of Moneys................................................................105
Section 7.14 Trustee To Act; Appointment of Successor............................................105
Section 7.15 Notification to Holders.............................................................107
Section 7.16 Representations and Warranties of the Trustee and the Fiscal Agent..................107
Section 7.17 Fidelity Bond and Errors and Omissions Insurance Policy Maintained by the
Trustee and the Fiscal Agent........................................................109
ARTICLE VIII ADMINISTRATION AND SERVICING OF MORTGAGE LOANS...........................................110
Section 8.1 Servicing Standard; Servicing Duties................................................110
Section 8.2 Fidelity Bond and Errors and Omissions Insurance Policy Maintained by the
Master Servicer.....................................................................110
Section 8.3 Master Servicer's General Power and Duties..........................................111
Section 8.4 Sub-Servicing.......................................................................114
Section 8.5 Master Servicer May Own Certificates................................................115
Section 8.6 Maintenance of Hazard Insurance, Other Insurance, Taxes and Other...................115
Section 8.7 Enforcement of Due-On-Sale Clauses; Assumption Agreements...........................117
Section 8.8 Trustee to Cooperate; Release of Trustee Mortgage Files.............................118
Section 8.9 Documents, Records and Funds in Possession of Master Servicer to be Held for
the Trustee for the Benefit of the Certificateholders...............................119
Section 8.10 Servicing Compensation..............................................................120
Section 8.11 Master Servicer Reports; Account Statements.........................................120
Section 8.12 Annual Statement as to Compliance...................................................121
Section 8.14 Annual Reports Regarding the Mortgaged Properties...................................121
Section 8.15 Other Available Information and Certain Rights of the Master Servicer...............122
Section 8.16 Rule 144A Information...............................................................124
Section 8.17 Inspections.........................................................................124
Section 8.18 Modifications, Waivers, Amendments, Extensions and Consents.........................125
Section 8.19 Specially Serviced Mortgage Loans...................................................126
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Section 8.20 Representations, Warranties and Covenants of the Master Servicer....................127
Section 8.21 Merger or Consolidation.............................................................128
Section 8.22 Resignation of Master Servicer......................................................128
Section 8.23 Assignment or Delegation of Duties by Master Servicer...............................129
Section 8.24 Limitation on Liability of the Master Servicer and Others...........................129
Section 8.25 Indemnification; Third-Party Claims.................................................131
Section 8.26 Exchange Act Reporting..............................................................133
Section 8.27 Compliance with REMIC Provisions....................................................133
Section 8.28 Termination.........................................................................134
Section 8.29 Procedure Upon Termination..........................................................135
ARTICLE IX ADMINISTRATION AND SERVICING OF SPECIALLY SERVICED MORTGAGE LOANS BY SPECIAL
SERVICER.................................................................................136
Section 9.1 Duties of Special Servicer..........................................................136
Section 9.2 Fidelity Bond and Errors and Omissions Insurance Policy of Special Servicer.........137
Section 9.3 Sub-Servicers.......................................................................137
Section 9.4 Special Servicer General Powers and Duties..........................................138
Section 9.5 "Due-on-Sale" Clauses; Assignment and Assumption Agreements; Modifications of
Specially Serviced Mortgage Loans...................................................139
Section 9.6 Release of Mortgage Files...........................................................142
Section 9.7 Documents, Records and Funds in Possession of Special Servicer To Be Held for
the Trustee.........................................................................143
Section 9.8 Representations, Warranties and Covenants of the Special Servicer...................144
Section 9.9 Standard Hazard, Flood and Comprehensive General Liability Insurance Policies.......145
Section 9.10 Presentment of Claims and Collection of Proceeds....................................147
Section 9.11 Compensation to the Special Servicer................................................147
Section 9.12 Realization Upon Defaulted Mortgage Loans...........................................148
Section 9.13 Foreclosure.........................................................................150
Section 9.14 Operation of REO Property...........................................................150
Section 9.15 Sale of REO Property................................................................153
Section 9.16 Realization on Collateral Security..................................................154
Section 9.17 Sale of Defaulted Mortgage Loans....................................................154
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Section 9.18 Annual Officer's Certificate as to Compliance.......................................154
Section 9.19 Annual Independent Accountants' Servicing Report....................................155
Section 9.20 Merger or Consolidation.............................................................155
Section 9.21 Resignation of Special Servicer.....................................................155
Section 9.22 Assignment or Delegation of Duties by Special Servicer..............................156
Section 9.23 Limitation on Liability of the Special Servicer and Others..........................156
Section 9.24 Indemnification; Third-Party Claims.................................................158
Section 9.25 [RESERVED.].........................................................................159
Section 9.26 Special Servicer May Own Certificates...............................................159
Section 9.27 Tax Reporting.......................................................................160
Section 9.28 Application of Funds Received.......................................................160
Section 9.29 Compliance with REMIC Provisions....................................................160
Section 9.30 Termination.........................................................................161
Section 9.31 Procedure Upon Termination..........................................................162
Section 9.32 Certain Special Servicer Reports....................................................163
Section 9.33 Special Servicer to Cooperate with the Master Servicer..............................164
Section 9.34 Certain REMIC Limitations on Modification of Specially Serviced Mortgage Loans......165
Section 9.35 [RESERVED]..........................................................................166
Section 9.36 Sale of Defaulted Mortgage Loans and REO Properties.................................166
Section 9.37 Operating Adviser; Elections........................................................168
Section 9.38 Limitation on Liability of Operating Adviser........................................169
Section 9.39 Duties of Operating Adviser.........................................................169
ARTICLE X PURCHASE AND TERMINATION OF THE TRUST....................................................170
Section 10.1 Termination of Trust Upon Repurchase or Liquidation of All Mortgage Loans...........170
Section 10.2 Procedure Upon Termination of Trust.................................................171
Section 10.3 Additional Trust Termination Requirements...........................................172
ARTICLE XI RIGHTS OF CERTIFICATEHOLDERS.............................................................173
Section 11.1 Limitation on Rights of Holders.....................................................173
Section 11.2 Access to List of Holders...........................................................174
Section 11.3 Acts of Holders of Certificates.....................................................175
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THIS POOLING AND SERVICING AGREEMENT is dated as of March 1, 1998
(this "Agreement") among MORGAN STANLEY CAPITAL I INC., a Delaware corporation,
as depositor (the "Depositor"), WELLS FARGO BANK, NATIONAL ASSOCIATION, as
master servicer (the "Master Servicer"), CRIIMI MAE SERVICES LIMITED
PARTNERSHIP, as special servicer (the "Special Servicer"), LASALLE NATIONAL
BANK, as trustee of the Trust (the "Trustee"), 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 the Mortgage Loans
from Morgan Stanley Mortgage Capital Inc., as seller ("MSMC"), Wells Fargo Bank,
National Association, as seller (in such capacity, "Wells Fargo"), and John
Hancock Real Estate Finance, Inc., as seller ("John Hancock"), and will be the
owner of the Mortgage Loans and the other property being conveyed by it to the
Trustee for inclusion in the Trust. On the Closing Date, the Depositor will
acquire (i) the REMIC I Regular Interests and the Class R-I Certificate as
consideration for its transfer to the Trust of the Mortgage Loans and the other
property constituting the Trust; (ii) the REMIC II Regular Interests and the
Class R-II Certificates as consideration for its transfer of the REMIC I
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
REMIC I Regular Interests, the REMIC II Regular Interests, the Residual
Certificates, and the REMIC Regular 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.
The Class A-1, Class A-2, Class X-2, Class B, Class C, Class D and
Class E Certificates have been offered for sale pursuant to the prospectus (the
"Prospectus") dated February 19, 1998, as supplemented by the prospectus
supplement dated February 26, 1998 (together, the "Prospectus Supplement") and
the Class X-1, Class F, Class G, Class H, Class J, Class K, Class L, Class R-I,
Class R-II and the Class R-III Certificates have been offered for sale pursuant
to the Private Placement Memorandum dated February 26, 1998 (the "Private
Placement Memorandum").
The following sets forth the Class designation, Pass-Through Rate,
initial Aggregate Certificate Balance (or initial Notional Amount) and Final
Scheduled Distribution Date for each Class of REMIC I Regular Interests and the
Class R-I Certificates comprising the interests in REMIC I, each Class of REMIC
II Regular Interests and the Class R-II Certificate
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comprising the interests in REMIC II and each Class of REMIC III Certificates
comprising the interests in REMIC III created hereunder:
REMIC I
Each REMIC I Regular Interest (a "Corresponding REMIC I Regular
Interest") will relate to a specific Mortgage Loan. Each Corresponding REMIC I
Regular Interest will have a pass-through rate equal to the REMIC I Net Mortgage
Rate of the related Mortgage Loan, an initial principal amount (the initial
"Certificate Balance") equal to the Scheduled Principal Balance as of the
Cut-Off Date (as herein defined) of the Mortgage Loan to which the Corresponding
REMIC I Regular Interest relates, and a latest possible maturity date set to the
Maturity Date (as defined herein) of the Mortgage Loan to which the
Corresponding REMIC I Regular Interest relates. The Class R-I Certificate will
be designated as the sole class of residual interests in REMIC I and will have
no Certificate Balance and no Pass-Through Rate, but will be entitled to receive
the proceeds of any assets remaining in REMIC I after all classes of REMIC I
Regular Interests have been paid in full.
REMIC II
The REMIC II Regular Interests have the pass-through rates and
Certificate Balances set forth in the definition thereof. The Class R-II
Certificate will be designated as the sole class of residual interests in REMIC
II and will have no Certificate Balance and no Pass-Through Rate, but will be
entitled to receive the proceeds of any assets remaining in REMIC II after all
classes of REMIC II Regular Interests have been paid in full.
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REMIC III
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Initial
Aggregate
Certificate
Initial Pass- Principal or Final Rated
Through Notional Final Scheduled Distribution
Designation Rate(a) Amount Distribution Date(b) Date(c)
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<S> <C> <C> <C> <C>
Class A-1 6.25% 363,000,000 July 15, 2007 March 15, 2030
Class A-2 6.55% 653,315,000 December 15, 2007 March 15, 2030
Class X-1 0.73% 1,392,212,342 January 15, 2018 March 15, 2030
Class X-2 1.12% 763,756,000 March 15, 2003 March 15, 2030
Class B 6.67% 69,610,000 December 15, 2007 March 15, 2030
Class C 6.77% 69,610,000 January 15, 2008 March 15, 2030
Class D 7.12% 69,611,000 January 15, 2008 March 15, 2030
Class E 7.30% 31,325,000 February 15, 2008 March 15, 2030
Class F 7.30% 24,364,000 February 15, 2008 March 15, 2030
Class G 6.25% 38,286,000 February 15, 2010 March 15, 2030
Class H 6.25% 10,441,000 September 15, 2011 March 15, 2030
Class J 6.25% 27,845,000 January 15, 2013 March 15, 2030
Class K 6.25% 10,441,000 May 15, 2018 N/A
Class L 6.25% 24,364,342 May 15, 2018 N/A
Class R-III N/A N/A (1) N/A N/A
</TABLE>
(a) On each Distribution Date after the initial Distribution Date, the
Pass-Through Rate for each Class of Certificates will be determined as
described herein under the definition of "Pass-Through Rate."
(b) The Final Scheduled Distribution Date for each Class of Certificates
assigned a rating is the Distribution Date on which such Class is expected
to be paid in full, assuming that timely payments (and no prepayments)
will be made on the Mortgage Loans in accordance with their terms.
(c) The Final Rated Distribution Date for each Class of Certificates is March
15, 2030. That date is approximately 24 months following the end of the
amortization term of the Mortgage Loan that, as of the Closing Date, has
the longest remaining amortization term.
(1) The Class R-III Certificates will be entitled to receive the proceeds of
any remaining assets in REMIC III after the principal amounts of all
Classes of Certificates have been reduced to zero.
As of the Cut-Off Date, the Mortgage Loans had an Aggregate Principal
Balance of $1,392,212,342.
As provided herein, with respect to the Trust, the Trustee will make
an election for the segregated pool of assets described in the first paragraph
of Section 12.1(a) hereof (including the Mortgage Loans) to be treated for
federal income tax purposes as a real estate mortgage investment conduit ("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.
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As provided herein, with respect to the Trust, the Trustee will make
an election for the segregated pool of assets described in the second paragraph
of Section 12.1(a) hereof consisting of the REMIC I Regular Interests to be
treated for federal income tax purposes as a real estate mortgage investment
conduit ("REMIC II"). The REMIC II Regular Interests will be designated as the
"regular interests" in REMIC II and the Class R-II Certificates will be
designated as the sole class of "residual interests" in REMIC II for purposes of
the REMIC Provisions.
As provided herein, with respect to the Trust, the Trustee will make
an election for the segregated pool of assets described in the third paragraph
of Section 12.1(a) hereof consisting of the REMIC II Regular Interests to be
treated for federal income tax purposes as a real estate mortgage investment
conduit ("REMIC III"). The Class A, Class X-1, Class X-2, Class B, Class C,
Class D, Class E, Class F, Class G, Class H, Class J, Class K and Class L
Certificates (collectively, the "REMIC Regular Certificates") will be designated
as the "regular interests" in REMIC III and the Class R-III Certificates
(together with the REMIC Regular Certificates, the "REMIC III Certificates")
will be designated as the sole class of "residual interests" in REMIC III for
purposes of the REMIC Provisions.
ARTICLE I
DEFINITIONS
SECTION 1.1 DEFINITIONS. Whenever used in this Agreement, 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.
"ACCRUED CERTIFICATE INTEREST" means, (i) with respect to each
Distribution Date and any Class of Interests or Certificates, other than the
Class A-2 Certificates, the Class X Certificates, the Class R-I Certificates,
the Class R-II Certificates and the Class R-III Certificates, interest accrued
during the Interest Accrual Period relating to such Distribution Date on the
aggregate Certificate Balance of such Class or Interest as of the close of
business on the immediately preceding Distribution Date at the respective rates
per annum set forth in the definition of the applicable Pass-Through Rate for
each such Class and (ii) with respect to the Class A-2 Certificates, the sum of
(x) interest accrued during the Interest Accrual Period related to such
Distribution Date on the Certificate Balance of the Class A-2A Component at the
rate per annum set forth in the definition of the applicable Pass-Through Rate
for such Component and (y) interest accrued during the Interest Accrual Period
related to such Distribution Date on the Certificate Balance of the Class A-2B
Component at the rate per annum set forth in the definition of the applicable
Pass-Through Rate for such Component. Accrued Certificate Interest on the Class
X-1 Certificates for each Distribution Date will equal the Class X-1 Interest
Amount. Accrued Certificate Interest on the Class X-2 Certificates for each
Distribution Date will equal the Class X-2 Interest Amount.
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"ACQUISITION DATE" means the date upon which, under the Code (and in
particular the REMIC Provisions and Section 856(e) of the Code), the Trust or a
REMIC Pool is deemed to have acquired a Mortgaged Property.
"ADDITIONAL TRUST EXPENSE" means any of the following items: (i)
Special Servicing Fees and Liquidation Fees (to the extent not collected from
the related Mortgagor), (ii) Advance Interest that cannot be reimbursed from
collections on the related Mortgage Loan or REO Property; (iii) amounts paid to
indemnify the Master Servicer, Special Servicer, Trustee or the Fiscal Agent (or
any other Person) pursuant to the terms of this Agreement; (iv) to the extent
not otherwise paid, any federal, state, or local taxes imposed on the Trust or
its assets and paid from amounts on deposit in the Certificate Account or
Distribution Account, (v) the amount of any Advance that is not recovered from
the proceeds of a Mortgage Loan upon a Final Recovery Determination and (vi) 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 (or portion thereof) of the Trust
(including costs of collecting such amounts or other Additional Trust Expenses)
which the Trust has not recovered, and in the judgment of the Master Servicer
(or Special Servicer, in the case of a Specially Serviced Mortgage Loan) will
not, recover from the related Mortgagor or Mortgaged Property or otherwise,
including a Modification Loss described in clause (ii) of the definition
thereof. Notwithstanding anything to the contrary, "Additional Trust Expenses"
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.
"ADMINISTRATIVE COST RATE" means the sum of the Servicing Fee Rate,
the Special Servicing Standby Fee Rate and the Trustee Fee Rate.
"ADVANCE" means either a P&I Advance or a Servicing Advance.
"ADVANCE INTEREST" means interest payable to the Master Servicer, the
Trustee or the Fiscal Agent on outstanding Advances pursuant to Section 4.5 of
this Agreement.
"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.
"ADVANCE REPORT DATE" means the Business Day prior to each
Distribution Date.
"ADVERSE REMIC EVENT" means any action that, under the REMIC
Provisions, if taken or not taken, as the case may be, would either (i) endanger
the status of any REMIC as a REMIC or (ii) subject to Section 9.14(e), result in
the imposition of a tax upon the income of any REMIC or any of their respective
assets or transactions, including (without limitation) the tax on prohibited
transactions as defined in Code Section 860F(a)(2) and the tax on prohibited
contributions set forth in Section 860G(d) of the Code.
"AFFILIATE" means, with respect to any specified Person, any other
Person controlling or controlled by or under common control with such specified
Person. For the purposes of this definition, "control" when used with respect to
any specified Person means the
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power to direct the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities, by contract or
otherwise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
"AGGREGATE CERTIFICATE BALANCE" means the aggregate of the Certificate
Balances of the REMIC III Certificates, the REMIC I Interests or the REMIC II
Interests, as the case may be, at any date of determination. With respect to a
Class of Certificates or Interests, Aggregate Certificate Balance shall mean the
aggregate of the Certificate Balances of all Certificates or Interests, as the
case may be, of that Class at any date of determination or by Percentage
Interest, in the case of the Class R-I, Class R-II or Class R-III Certificates.
"AGGREGATE PRINCIPAL BALANCE" means, at the time of any determination
and as the context may require, the aggregate of the Scheduled Principal
Balances for all Mortgage Loans.
"AGREEMENT" means this Pooling and Servicing Agreement and all
amendments and supplements hereto.
"ANNUAL REPORT" means a report substantially in the form of Exhibit N.
"APPRAISAL" means an appraisal by an Independent licensed MAI
appraiser having at least five years experience in appraising property of the
same type as, and in the same geographic area as, the Mortgaged Property being
appraised, which appraisal complies with the Uniform Standards of Professional
Appraisal Practices and states the "market value" of the subject property as
defined in 12 C.F.R. Section 225.62.
"APPRAISAL EVENT" means, with respect to any 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 borrower 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
due date that a Balloon Payment is due for a period of less than six months from
the initial due 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 6.8, an amount equal to the excess of (A) the sum, as of the
first Determination Date that is at least 15 days after the date on which the
Appraisal or internal valuation is obtained or performed, of (i) the Scheduled
Principal Balance of such Mortgage Loan (or, in the case of an REO Property, the
related REO Mortgage 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 Escrow 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 such Mortgaged Property or REO Property,
as the case
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<PAGE> 14
may be, over (B) 90% of the Appraised Value (net of any prior mortgage liens) of
such 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. Any Appraisal Reduction for any
Mortgage Loan shall be reduced to reflect any Realized Principal Losses on the
Required Appraisal Loan. 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, or in certain cases will be
reduced by the amount of any Realized Loss of principal on the related Mortgage
Loan incurred prior to the liquidation or disposition thereof. Notwithstanding
the foregoing, if an internal valuation of the Mortgaged Property is performed,
the Appraisal Reduction will equal the greater of (A) the amount calculated
above and (B) 25% of the Principal Balance of the Mortgage Loan.
"APPRAISED VALUE" means, with respect to any Mortgaged Property, the
appraised value thereof determined by an Appraisal of the Mortgaged Property
securing such Mortgage Loan made by an Independent appraiser selected by the
Master Servicer or the Special Servicer, as applicable or, in the case of an
internal valuation performed pursuant to Section 6.8(a), the value of the
Mortgaged Property determined by such internal valuation.
"ASSIGNMENT OF LEASES" means, with respect to any Mortgage Loan, any
assignment of leases, rents and profits or equivalent instrument, whether
contained in the related Mortgage or executed separately, assigning to the
holder or holders of such Mortgage all of the related Mortgagor's interest in
the leases, rents and profits derived from the ownership, operation, leasing or
disposition of all or a portion of the related Mortgaged Property as security
for repayment of such Mortgage Loan.
"ASSIGNMENT OF MORTGAGE" means an assignment of the Mortgage, notice
of transfer or equivalent instrument, in recordable form, sufficient under the
laws of the jurisdiction wherein the related Mortgaged Property is located to
reflect the transfer of the Mortgage to the Trustee, which assignment, notice of
transfer or equivalent instrument may be in the form of one or more blanket
assignments covering the Mortgage Loans secured by Mortgaged Properties located
in the same jurisdiction, if permitted by law.
"ASSUMED SCHEDULED PAYMENT" means: (i) with respect to any Balloon
Mortgage Loan for its Maturity Date (provided that such Mortgage Loan has not
been paid in full, and no Final Recovery Determination or other sale or
liquidation has occurred in respect thereof, on or before the end of the
Collection Period in which such Maturity Date occurs) and for any subsequent Due
Date therefor as of which such Mortgage Loan remains outstanding and part of the
Trust, if no Scheduled Payment (other than the related delinquent Balloon
Payment) is due for such Due Date, the scheduled monthly payment of principal
and interest deemed to be due in respect thereof on such Due Date equal to the
Scheduled 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 in effect immediately prior to, and without regard to the
occurrence of, its most recent Maturity Date (as such may have been extended in
connection with a bankruptcy or
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<PAGE> 15
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
the Special Servicer pursuant to the terms hereof), and (ii) with respect to the
REO Mortgage Loan for any Due Date therefor as of which the related REO Property
remains part of the Trust, the scheduled monthly payment of principal and
interest deemed to be due in respect thereof on such Due Date equal to the
Scheduled Payment (or, in the case of a Balloon Mortgage Loan described in the
preceding clause of this definition, the Assumed Scheduled Payment) that was due
in respect of the related Mortgage Loan on 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 ADVANCE REIMBURSEMENT AMOUNT" shall have the meaning set
forth in Section 4.6(a) hereof.
"AVAILABLE DISTRIBUTION AMOUNT" means, with respect to any
Distribution Date, an amount equal to the aggregate of (a) all amounts on
deposit in the Distribution Account as of the commencement of business on such
Distribution Date that represent payments and other 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 or reimbursable to any Person other than the
Certificateholders (including amounts payable to the Master Servicer in respect
of unpaid Servicing Fees, the Special Servicer in respect of unpaid Special
Servicer Compensation or the Trustee in respect of unpaid Trustee Fees or
amounts 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 amount of any Compensating Interest payments made by the Master
Servicer for such Distribution Date pursuant to the terms hereof.
"BALLOON MORTGAGE LOAN" means a Mortgage Loan which will not be fully
amortized by its original or modified Maturity Date, based on the fixed monthly
Scheduled Payment.
"BALLOON PAYMENT" means, with respect to any Balloon Mortgage Loan,
the Scheduled Payment payable on the Maturity Date of such Mortgage Loan.
"BANKRUPTCY LOSS" means a loss arising from a proceeding under the
United States Bankruptcy Code or any other similar state law or other proceeding
with respect to the Mortgagor of, or Mortgaged Property under, a Mortgage Loan,
including, without limitation, any Deficient Valuation Amount or losses, if any,
resulting from any Debt Service Reduction Amount for the month in which the
related Remittance Date occurs.
"BENEFIT PLAN OPINION" means an Opinion of Counsel satisfactory to the
Trustee and the Master Servicer to the effect that any proposed transfer will
not (i) cause the assets of
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<PAGE> 16
any REMIC to be regarded as plan assets for purposes of the Plan Asset
Regulations or (ii) give rise to any fiduciary duty on the part of the
Depositor, the Master Servicer, the Special Servicer, the Trustee or the Fiscal
Agent.
"BOOK-ENTRY CERTIFICATES" means certificates evidencing a beneficial
interest in a Class of Certificates, ownership and transfer of which shall be
made through book entries as described in Section 3.7; 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."
"BUSINESS DAY" means any day other than (i) a Saturday or a Sunday,
(ii) a legal holiday in New York, New York, Boston, Massachusetts, Chicago,
Illinois, San Francisco, California or the principal cities in which the Special
Servicer, the Trustee or the Master Servicer conducts servicing or trust
operations, or (iii) a day on which banking institutions or savings associations
in New York, New York, Chicago, Illinois or San Francisco, California are
authorized or obligated by law or executive order to be closed.
"CASH LIQUIDATION" means, as to any Defaulted Mortgage Loan other than
a Mortgage Loan with respect to which the related Mortgaged Property became REO
Property, the amount of all Insurance Proceeds, Condemnation Proceeds,
Liquidation Proceeds, Purchase Proceeds and other payments or recoveries with
respect to a Final Recovery Determination. The Master Servicer shall maintain
records in accordance with the Servicing Standard (and, in the case of Specially
Serviced Mortgage Loans, based on the written reports with respect to such Cash
Liquidation delivered by the Special Servicer to the Master Servicer), of each
Cash Liquidation.
"CEDEL" means Cedel Bank, societe anonyme.
"CERCLA" shall mean the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended (42 U.S.C. Section 9601, et
seq.).
"CERTIFICATE ACCOUNT" means one or more separate accounts established
and maintained by the Master Servicer (or any Sub-Servicer on behalf of the
Master Servicer) pursuant to Section 5.1(a), which each account shall be an
Eligible Account.
"CERTIFICATE BALANCE" means, with respect to any Certificate or
Interest (other than the Class X Certificates and the Residual Certificates) as
of any Distribution Date, the maximum specified dollar amount of principal to
which the Holder thereof is then entitled hereunder, such amount being equal to
the initial principal amount set forth on the face of such Certificate (in the
case of a Certificate), or as ascribed thereto in the Preliminary Statement (in
the case of an Interest), minus (i) the amount of all principal distributions
previously made with respect to such Certificate pursuant to Section 6.4(a) or
deemed to have been made with respect to such Interest pursuant to Section
6.2(a) or Section 6.3(a), as the case may be, (ii) all Realized Losses allocated
or deemed to have been allocated to such Interest or Certificate pursuant to
Section 6.5, and (iii) Expense Losses allocated to such Interest or Certificate
pursuant to Section 6.5.
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"CERTIFICATE OWNER" shall mean, with respect to a Book-Entry
Certificate, the Person who is the beneficial owner of such Book-Entry
Certificate, as may be reflected on the books of the Clearing Agency, or on the
books of a Person maintaining an account with such Clearing Agency (directly or
as an indirect participant, in accordance with the rules of such Clearing
Agency).
"CERTIFICATE REGISTER" has the meaning provided in Section 3.2.
"CERTIFICATE REGISTRAR" means the registrar appointed pursuant to
Section 3.2.
"CERTIFICATEHOLDERS" has the meaning provided in the definition of
"Holder."
"CERTIFICATES" means, collectively, the REMIC III Certificates, the
Class R-I Certificates and the Class R-II Certificates.
"CLASS" means, with respect to the REMIC I Interests, REMIC II
Interests or REMIC III Certificates, any Class of such Certificates or
Interests.
"CLASS A-1 CERTIFICATES," "CLASS A-2 CERTIFICATES," "CLASS X-1
CERTIFICATES," "CLASS X-2 CERTIFICATES," "CLASS B CERTIFICATES," "CLASS C
CERTIFICATES," "CLASS D CERTIFICATES," "CLASS E CERTIFICATES," "CLASS F
CERTIFICATES," "CLASS G CERTIFICATES," "CLASS H CERTIFICATES," "CLASS J
CERTIFICATES," "CLASS K CERTIFICATES," "CLASS L," "CLASS R-I CERTIFICATES,"
"CLASS R-II CERTIFICATES" or "CLASS R-III CERTIFICATES," mean the Certificates
designated as "Class A-1," "Class A-2," "Class X-1," "Class X-2," "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 face thereof, in substantially the form attached hereto as Exhibits A-1
through A-16 hereof.
"CLASS A CERTIFICATES" means the Class A-1 Certificates and Class A-2
Certificates, collectively.
"CLASS A-2A COMPONENT" means a component of the beneficial interest in
REMIC III evidenced by the Class A-2 Certificates, which component represents a
Certificate Balance equal to the Certificate Balance of the REMIC II Regular
Interest A-2A.
"CLASS A-2B COMPONENT" means a component of the beneficial interest in
REMIC III evidenced by the Class A-2 Certificates, which represents a
Certificate Balance equal to the Certificate Balance of the REMIC II Regular
Interest A-2B.
"CLASS X CERTIFICATES" means the Class X-1 Certificates and the Class
X-2 Certificates.
"CLASS X-1 INTEREST AMOUNT" means, with respect to any Distribution
Date and the related Interest Accrual Period, interest equal to the product of
(i) one-twelfth of a per annum rate equal to the weighted average of the Class
X-1 Strip Rates for the Class A-1 Certificates, Class A-2A Component, Class B
Certificates, Class C Certificates, Class D Certificates, Class E Certificates,
Class F Certificates, Class G Certificates, Class H Certificates, Class J
Certificates, and Class K Certificates, weighted on the basis of the respective
Certificate Balances of such
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<PAGE> 18
Classes of Certificates or such Components, and (ii) the Class X- 1 Notional
Amount for such Distribution Date.
"CLASS X-2 INTEREST AMOUNT" means, with respect to any Distribution
Date and the related Interest Accrual Period, interest equal to the product of
(i) one-twelfth of a per annum rate equal to the weighted average of the Class
X-2 Strip Rates for the Class A-2B Component, Class B Certificates, Class C
Certificates, Class D Certificates and Class E Certificates, weighted on the
basis of the respective Certificate Balances of such Classes of Certificates or
such Component, and (ii) the Class X-2 Notional Amount for such Distribution
Date.
"CLASS X-1 NOTIONAL AMOUNT" means, with respect to any Distribution
Date, the aggregate of the Certificate Balances of the REMIC Regular
Certificates as of the close of business on the preceding Distribution Date.
"CLASS X-2 NOTIONAL AMOUNT" means, (i) with respect to any
Distribution Date occurring on or before the Distribution Date in March, 2003,
the aggregate of the Certificate Balances of the Class A-2B Component and the
Class B, Class C, Class D and Class E Certificates as of the close of business
on the preceding Distribution Date and (ii) with respect to any Distribution
Date occurring after the Distribution Date in March, 2003, zero.
"CLASS X-1 STRIP RATE" means, for any Distribution Date, with respect
to any Class of Certificates (other than the Class A-2 Certificates, the Class X
Certificates and the Residual Certificates), the Class A- 2A Component and the
Class A-2B Component, the excess, if any, of (i) the Weighted Average REMIC I
Net Mortgage Rate for such Distribution Date over (ii) (x) in the case of the
Class A-1 Certificates, Class A-2A Component, Class F Certificates, Class G
Certificates, Class H Certificates, Class J Certificates, Class K Certificates
and Class L Certificates, the Pass-Through Rate for such Class of Certificates
or such Component and (y) in the case of Class A-2B Component, Class B
Certificates, Class C Certificates, Class D Certificates and Class E
Certificates, (i) for any Distribution Date occurring on or before the
Distribution Date in March, 2003, the rate per annum corresponding to such
Distribution Date as set forth in Schedule A attached hereto and (ii) for any
Distribution Date occurring after the Distribution Date in March, 2003, the
Pass-Through Rate for such Class of Certificates or such Component, but in no
event shall the Class X-1 Strip Rate be less than zero.
"CLASS X-2 STRIP RATE" means, for any Distribution Date, with respect
to the Class A-2B Component, Class B Certificates, Class C Certificates, Class D
Certificates and Class E Certificates, the lesser of (i) the rate per annum
corresponding to such Distribution Date as set forth in Schedule A attached
hereto and (ii) the excess, if any, of (x) the Weighted Average REMIC I Net
Mortgage Rate for such Distribution Date over (y) the Pass-Through Rate for such
Component or such Class of Certificates for such Distribution Date, but in no
event will any Class X-2 Strip Rate be less than zero.
"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 5, 1998.
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"CODE" means the Internal Revenue Code of 1986, as amended, any
successor statutes thereto, and applicable U.S. Department of Treasury
regulations issued pursuant thereto in temporary or final form and proposed
regulations thereunder, to the extent that, by reason of their proposed
effective date, such proposed regulations would apply to the Trust.
"COLLECTION PERIOD" means, with respect to any Distribution Date, the
period beginning (A) with respect to Scheduled 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, 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
such Distribution Date occurs and the fourth Business Day prior to such
Distribution Date.
"COMPENSATING INTEREST" means with respect to any Distribution Date,
an amount equal to the excess of (A) Prepayment Interest Shortfalls resulting
from Principal Prepayments during the related Collection Period over (B)
Prepayment Interest Excesses resulting from Principal Prepayments during the
same Collection Period, but in any event not more than the portion of the
aggregate Servicing Fee for the related Collection Period calculated in respect
of all the Mortgage Loans (including Mortgage Loans related to REO Properties)
less the portion payable to Sub-Servicers as Sub-Servicing Fees.
"COMPONENT" means either of the Class A-2A Component and the Class
A-2B Component.
"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 by or to any
governmental, quasi-governmental authority or private entity with condemnation
powers other than amounts to be applied to the restoration, preservation or
repair of such Mortgaged Property or released to the related Mortgagor in
accordance with the terms of the Mortgage Loan.
"CONTROLLING CLASS" means the most subordinate Class of Certificates
outstanding at any time of determination; provided, that, no Class may be the
Controlling Class at any time that (i) with respect to such Class (other than
the Class L Certificates) the then Certificate Balance of such Class is less
than 50% of the initial Certificate Balance of such Class or (ii) with respect
to the Class L Certificates, the then Certificate Balance of the Class L
Certificates is less than 20% of the initial Certificate Balance of the Class L
Certificates. 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 who "controls" such Person within the meaning of the 1933 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
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<PAGE> 20
Presenting Office (if any). The principal corporate trust office of the Trustee
is presently located at 135 South LaSalle Street, Suite 1625, Chicago, IL
60674-4107, Attention: Asset-Backed Securities Trust Services Group--Morgan
Stanley Series 1998-WF1, 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.
"CORRESPONDING REMIC I REGULAR INTEREST" means with respect to each
Mortgage Loan, the REMIC I Regular Interest having an initial Certificate
Balance equal to the principal balance of such Mortgage Loan outstanding as of
the Cut-Off Date, after taking into account all principal and interest payments
made or due prior to the Cut-Off Date.
"CORRESPONDING REMIC II REGULAR INTEREST" means (i) with respect to
the Class A-1 Certificates, the REMIC II Regular Interest A-1, (ii) with respect
to the Class A-2 Certificates, the REMIC II Regular Interest A-2A and the REMIC
II Regular Interest A-2B and (iii) with respect to each Class of Subordinate
Certificates, the REMIC II Regular Interest having the same letter designation.
"CURRENTLY PAYING CLASS" means any one of the Class of Interests which
is currently receiving distributions of principal pursuant to Section 6.2
hereof.
"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 and satisfies the eligibility
requirements of the Trustee as set forth in Section 7.5.
"CUT-OFF DATE" means the end of business on March 1, 1998.
"CUT-OFF DATE AGGREGATE PRINCIPAL BALANCE" means, with respect to the
Mortgage Loans on the Closing Date, the Aggregate Principal Balance for all such
Mortgage Loans as of the Cut-Off Date, reduced by all payments of principal due
on or before the Cut-Off Date whether or not paid, and increased by Scheduled
Payments of principal due after the Cut-Off Date but received by the Master
Servicer on or before the Cut-Off Date.
"DCR" means Duff & Phelps Credit Rating Co. or its successor in
interest.
"DEBT SERVICE COVERAGE RATIO" means, with respect to any Mortgage
Loan, as of any date of determination and for any period, the amount calculated
for such date of determination in accordance with the procedures set forth in
Exhibit T.
"DEBT SERVICE REDUCTION AMOUNT" means, with respect to a Due Date and
the related Determination Date, the amount of the reduction of the Scheduled
Payment which a Mortgagor is obligated to pay on such Due Date with respect to a
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
include only the net present value (calculated at the related Mortgage Rate) of
the reduction.
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"DEFAULTED MORTGAGE LOAN" means a Mortgage Loan which is in default
under the terms of the applicable Mortgage Loan documentation and for which any
applicable grace period has expired.
"DEFICIENT VALUATION" means, with respect to any Mortgage Loan, a
valuation by a court of competent jurisdiction of the Mortgaged Property
relating to a Mortgage Loan in an amount less than the then outstanding
indebtedness under such Mortgage Loan, which valuation results from a proceeding
initiated under the United States Bankruptcy Code, as amended from time to time,
and that reduces the amount the Mortgagor is required to pay under such Mortgage
Loan.
"DEFICIENT VALUATION AMOUNT" means the amount by which the total
amount due with respect to a Mortgage Loan (excluding interest not yet accrued),
including the principal balance of a Mortgage Loan plus any accrued and unpaid
interest thereon and any other amounts recoverable from the Mortgagor with
respect thereto pursuant to the terms thereof, is reduced in connection with a
Deficient Valuation.
"DEFINITIVE CERTIFICATES" means Certificates of any Class issued in
definitive, fully registered, certificated form without interest coupons.
"DELETED MORTGAGE LOAN" means a Mortgage Loan which is repurchased
from the Trust pursuant to the terms hereof or as to which one or more
Qualifying Substitute Mortgage Loans are substituted.
"DEPOSITOR" means Morgan Stanley Capital I Inc., a Delaware
corporation, and its successors in interest.
"DEPOSITORY" has the meaning set forth in Section 3.7(a).
"DEPOSITORY AGREEMENT" means the Letter of Representations by and
among the Depositor, the Trustee and the Depository.
"DETERMINATION DATE" means, with respect to any Distribution Date, the
10th day of the month in which such Distribution Date occurs or, if such day is
not a Business Day, the next preceding Business Day, commencing April 10, 1998.
"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 (other than a sale of an REO Property pursuant to and in
accordance with Section 9.15 or Section 9.36), the performance of any
construction work thereon or any use of such REO Property in a trade or business
conducted by the Trust, in each case other than through an Independent
Contractor; provided, however, that the Trustee (or the Special Servicer on
behalf of the Trustee) shall not be considered to Directly Operate an REO
Property solely because the Trustee (or the Special Servicer on behalf of the
Trustee) establishes rental terms, chooses tenants, enters into or renews
leases, deals with taxes and insurance, or makes decisions as to repairs, tenant
improvements or capital expenditures with respect to such REO Property
(including, without limitation, construction activity to effect
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<PAGE> 22
repairs or in connection with leasing activity) or undertakes any ministerial
action incidental thereto.
"DISCOUNT RATE" means the rate which, when compounded monthly, is
equivalent to the Treasury Rate when compounded semi-annually. The "Treasury
Rate" is the yield calculated by the linear interpolation of the yields, as
reported in Federal Reserve Statistical Release H.15--Selected Interest Rates
under the heading "U.S. government securities/Treasury constant maturities" for
the week ending prior to the date of the relevant principal prepayment, of U.S.
Treasury constant maturities with a maturity date (one longer and one shorter)
most nearly approximating the maturity date of the Mortgage Loan prepaid. If
Release H.15 is no longer published, the Master Servicer will select a
comparable publication to determine the Treasury Rate.
"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 Master Servicer based upon an
Opinion of Counsel that the holding of an ownership interest in a Residual
Certificate by such Person may cause either of the REMICs, 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
Distribution Date and any Class of Certificates (other than the Residual
Certificates) or Interests, the sum of (A) Accrued Certificate Interest, reduced
by (i) any Net Aggregate Prepayment Interest Shortfalls not offset by
Compensating Interest, allocated on such Distribution Date to such Class or
Interest pursuant to Section 6.6, and (ii) Realized Losses and Expense Losses
allocated on such Distribution Date to reduce the interest payable to such Class
or Interest pursuant to Section 6.5, plus (B) the Unpaid Interest.
"DISTRIBUTION ACCOUNT" means the Distribution Account maintained by
the Trustee or the Paying Agent, on its behalf, in accordance with the
provisions of Section 5.3, which account shall be an Eligible Account.
"DISTRIBUTION DATE" means the 15th day of each month or, if such day
is not a Business Day, the next succeeding Business Day, commencing April 15,
1998.
"DOCUMENT DEFECT" has the meaning set forth in Section 2.3(a).
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"DUE DATE" means, with respect to a Mortgage Loan, the date on which a
Scheduled Payment is due.
"ELIGIBLE ACCOUNT" means (i) an account or accounts maintained with a
depository institution or trust company the long-term unsecured debt obligations
of which are rated at least "AA-" or better by S&P and "A" by DCR if rated by
DCR or if not rated by DCR, then otherwise approved by DCR; or (ii) an account
or accounts in which funds will be held therein for 30 days or less which are
maintained with a depository institution or trust company, the short-term
unsecured debt obligations of which are rated "A-1" or better by S&P and "D-1"
or better by DCR if rated by DCR or if not rated by DCR, then otherwise approved
by DCR, in each case at the time of any deposit therein; or (iii) 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 Master Servicer (or any Affiliate of
the Master Servicer) or Trustee, provided any such institution is subject to
regulations regarding fiduciary funds on deposit substantially similar to 12
C.F.R. Section 9.10(b)and the maintenance of such account in such institution
will not result in the qualification, downgrading or withdrawal of the rating
then assigned to any Class of Certificates as evidenced in writing by each
Rating Agency; or (iv) any account, the establishment and maintenance of which
is the subject of a Rating Agency Confirmation. Eligible Accounts may bear
interest.
"ELIGIBLE INVESTMENTS" means any one or more of the following
financial assets or other property.
(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 and time deposits in, certificates of deposit of, or
bankers' acceptances issued by, any depository institution or trust company
(including the Trustee, the Fiscal Agent, the Master Servicer, the Special
Servicer, or any Affiliate of the Master Servicer, the Special Servicer,
the Fiscal Agent or the Trustee, acting in its commercial capacity)
incorporated or organized under the laws of the United States of America or
any State thereof and subject to supervision and examination by federal or
state banking authorities, so long as the commercial paper or other
short-term debt obligations of such depository institution or trust company
are rated "D-1+" or better by DCR, (if rated by DCR), or otherwise approved
by DCR if not rated by DCR, and "A-1" or better by S&P or are the subject
of a Rating Agency Confirmation;
(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
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such repurchase obligation will mature prior to the Business Day preceding
the next Distribution Date upon which, as described in the Agreement, such
amounts are required to be withdrawn from the related 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 have ratings from S&P and DCR that are at least
equal to the highest long-term credit ratings assigned by S&P and DCR
(respectively), 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 Certificate Account to exceed 10% of the sum of the
Aggregate Principal Balance and the aggregate principal amount of all
Eligible Investments in the Certificate Account;
(v) commercial paper (including both noninterest-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)
rated "A-1" by S&P and "D-1+" by DCR (if rated by DCR), or with respect to
which Rating Agency Confirmation has been obtained;
(vi) units of investment funds (including money market funds)
rated in the highest long-term category by S&P and, if rated thereby, DCR
or if not rated by DCR, then otherwise approved by DCR;
(vii) guaranteed reinvestment agreements maturing 365 days or
less issued by any bank, insurance company or other corporation rated in
the highest long term unsecured rating, but in any event, not less than
"AAA" by S&P and by DCR (if rated by DCR);
(viii) any money market fund rated "AAAm" or "AAAm-G" by S&P and
"AAA" by DCR (if rated by DCR) or if not rated by DCR, then otherwise
approved by DCR, and any other demand, money-market or time deposit, or any
other obligation, security or investment, that may be acceptable to the
Rating Agencies as a permitted investment of funds which will not result in
a qualification, downgrading or withdrawal of the rating of any Class of
Certificates; and
(ix) such other investments bearing interest or sold at a
discount, or earning a return "in the nature of interest" within the
meaning of Treasury Regulation Section 1.860G-2(g)(1) (as evidenced by an
Opinion of Counsel delivered to the Trustee by the Master Servicer at the
Master Servicer's expense) that are the subject of a Rating Agency
Confirmation and otherwise treated as "permitted investments" under Code
Section 860G(a)(5).
provided (A) no such instrument shall be an Eligible Investment if an
"r" highlighter is affixed to its rating by S&P, (B) such investment is held for
a temporary period
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pursuant to Section 1.860G-2(g)(1) of the Treasury Regulations and (C) that no
such instrument shall be an Eligible Investment if such instrument evidences
either (X) a right to receive only interest payments or only principal payments
with respect to the obligations underlying such instrument or (Y) 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 (Z) if it may be redeemed at
a price below the purchase price (the foregoing clause (C) shall not apply to
investments in units of money market funds pursuant to clause (vi) or clause
(viii) above); and provided, further, that interest on any variable rate
instrument shall be tied to a single interest rate index plus a single fixed
spread (if any) and move proportionally with that index; and provided, further,
that no amount beneficially owned by any REMIC (including any amounts collected
by the Master Servicer but not yet deposited in the Certificate Account) may be
invested in investments treated as equity interests for Federal income tax
purposes, unless the Master Servicer and the Trustee shall receive an Opinion of
Counsel to the effect that such investment will not adversely affect the status
of any such REMIC as a REMIC under the Code or result in imposition of a tax on
any such REMIC. Each Eligible Investment shall have a predetermined fixed dollar
amount of principal due at maturity that cannot vary or change and shall not be
subject to liquidation prior to maturity. No Eligible Investments shall be
purchased at a price in excess of par or have maturities in excess of one year.
For the purpose of this definition, units of investment funds (including money
market funds) shall be deemed to mature daily.
"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 health or 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.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended.
"ESCROW ACCOUNT" means an account established by the Master Servicer
pursuant to Section 8.3(e).
"ESCROW AMOUNT" means any amount payable with respect to a Mortgage
Loan for taxes, assessments, water rates, Standard Hazard Insurance Policy
premiums, ground lease payments, reserves for capital improvements, deferred
maintenance, tenant improvements, leasing commissions, environmental matters and
other reserves or comparable items.
"EVENT OF DEFAULT" has the meaning set forth in Section 8.28(b).
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"EXCHANGE CERTIFICATION" means an Exchange Certification substantially
in the form set forth in Exhibit H hereto executed by a holder of an interest in
a Regulation S Global Certificate or a Rule 144A-IAI Global Certificate, as
applicable.
"EXPENSE LOSS" means a loss realized upon payment by the Trust of an
Additional Trust Expense.
"EXTENSION" has the meaning set forth in Section 9.15(a).
"FDIC" means the Federal Deposit Insurance Corporation or any
successor thereto.
"FHLMC" means the Federal Home Loan Mortgage Corporation, or any
successor thereto.
"FHLMC AUDIT PROGRAM" shall have the meaning set forth in Section
8.13.
"FINAL CERTIFICATION" has the meaning set forth in Section 2.2.
"FINAL RATED DISTRIBUTION DATE" means with respect to each rated Class
of Certificates, the date shown on the chart in the Preliminary Statement.
"FINAL RECOVERY DETERMINATION" means a determination with respect to
any Mortgage Loan or Specially Serviced Mortgage Loan by the Master Servicer in
consultation with the Special Servicer in respect of any Defaulted Mortgage Loan
(including a Mortgage Loan that became an REO Property), in each case, in its
good faith discretion, consistent with the Servicing Standard that all Insurance
Proceeds, Condemnation Proceeds, Liquidation Proceeds, Purchase Proceeds and
other payments or recoveries which the Master Servicer or the Special Servicer,
as the case may be, expects to be finally recoverable on such Mortgage Loan,
without regard to any obligation of the Master Servicer, the Trustee or the
Fiscal Agent, as the case may be, to make payments from its own funds pursuant
to Article IV hereof, have been recovered. The Special Servicer shall be
required to provide the Master Servicer with prompt written notice of any Final
Recovery Determination with respect to any Specially Serviced Mortgage Loan upon
making such determination. The Master Servicer shall notify the Trustee of such
determination and the Trustee shall deliver a copy of such notice to each Rating
Agency.
"FINAL SCHEDULED DISTRIBUTION DATE" means, for each Class of rated
Certificates, the Distribution Date on which such Class will be paid in full
assuming that timely payments will be made on the Mortgage Loans in accordance
with their terms.
"FISCAL AGENT" means ABN AMRO Bank N.V., a banking organization
organized under the laws of the Netherlands and its permitted successors or
assigns.
"FISCAL AGENT TERMINATION EVENT" has the meaning set forth in Section
4.7.
"FNMA" means the Federal National Mortgage Association, or any
successor thereto.
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"GENERAL PARTNER" means CRIIMI MAE Management, Inc. or its successor
in interest, in its capacity as the general partner of the Special Servicer.
"GLOBAL CERTIFICATE" means any Rule 144A-IAI Global Certificate,
Regulation S Temporary Global Certificate or Regulation S Permanent Global
Certificate.
"HOLDER" means the Person in whose name a Certificate is registered on
the Certificate Register.
"INDEPENDENT" means, when used with respect to any Accountants, a
Person who is "independent" within the meaning of Rule 2-01(B) of the Securities
and Exchange Commission's Regulation S-X. Independent means, when used with
respect to any other Person, a Person who (A) is in fact independent of another
specified Person and any Affiliate of such other Person, (B) does not have any
material direct or indirect financial interest in such other Person or any
Affiliate of such other Person, (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
and (D) is not a member of the immediate family of a Person defined in clause
(B) or (C) above.
"INDEPENDENT CONTRACTOR" means, either (i) with respect to any
Mortgage Loan (A) that is not a Specially Serviced Mortgage Loan, any Person
designated by the Master Servicer (other than the Master Servicer, but which may
be an Affiliate of the Master Servicer) or, (B) that is a Specially Serviced
Mortgage Loan, any Person designated by the Special Servicer that would be an
"independent contractor" with respect to the applicable REMIC Pool within the
meaning of Section 856(d)(3) of the Code if such REMIC Pool were a real estate
investment trust (except that the ownership test set forth in such Section shall
be considered to be met by any Person that owns, directly or indirectly, 35% or
more of the Aggregate Certificate Balance or Notional Amount, as the case may
be, of any Class of the Certificates (other than the Class R-III Certificates),
a Percentage Interest of 35% or more in the Class R-III Certificates or such
other interest in any Class of the Certificates or of the applicable REMIC Pool
as is set forth in an Opinion of Counsel, which shall be at no expense to the
Trustee or the Trust) so long as such REMIC Pool does not receive or derive any
income from such Person and provided that the relationship between such Person
and such REMIC Pool is at arm's length all within the meaning of Treasury
Regulation Section 1.856 - 4(b)(5) or (ii) any other Person (including the
Master Servicer or the Special Servicer) upon receipt by the Trustee of an
Opinion of Counsel, which shall be at the expense of the Person delivering such
opinion to the Trustee, to the effect that the taking of any action in respect
of any REO Property by such Person, subject to any conditions therein specified,
that is otherwise herein contemplated to be taken by an Independent Contractor
will not cause such REO Property to cease to qualify as "foreclosure property"
within the meaning of Section 860G(a)(8) of the Code (determined without regard
to the exception applicable for purposes of Section 860D(a) of the Code), or
cause any income realized in respect of such REO Property to fail to qualify as
Rents from Real Property.
"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.
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"INITIAL CERTIFICATION" has the meaning set forth in Section 2.2.
"INITIAL DEPOSIT" means the amount of all collections made on the
Mortgage Loans from the Cut-Off Date to and excluding the Closing Date.
"INSPECTION REPORT" means the report delivered by the Master Servicer
or the Special Servicer, as the case may be, substantially in the form of
Exhibit L hereto.
"INSTITUTIONAL ACCREDITED INVESTOR" shall mean an institutional
accredited investor qualifying pursuant to Rule 501(a)(1), (2), (3) or (7) of
Regulation D of the 1933 Act.
"INSURANCE POLICIES" means, collectively, any Standard Hazard
Insurance Policy, flood insurance policy or title insurance policy relating to
the Mortgage Loans or the Mortgaged Properties 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, other than amounts required to be paid over to the Mortgagor
pursuant to law, the related Mortgage Loan or the Servicing Standard.
"INTEREST" means a REMIC I Interest or a REMIC II Interest, as
applicable.
"INTEREST ACCRUAL PERIOD" means, for any Distribution Date, with
respect to all Classes of Certificates and Interests (other than the Residual
Certificates), the period beginning on the first day of the month preceding the
month in which such Distribution Date occurs and ending on the last day of the
month preceding the month in which such Distribution Date occurs.
"INTERESTED PERSON" means, as of any date of determination, the Master
Servicer, the Special Servicer, the Depositor, with respect to any Mortgage
Loan, the holder of any related Junior Indebtedness, a holder of 50% or more of
the Controlling Class, the Operating Adviser, any Independent Contractor engaged
by the Master Servicer or the Special Servicer pursuant to this Agreement, or
any Person actually known to a Responsible Officer of the Trustee to be an
Affiliate of any of them.
"INVESTOR" means any purchaser of a Certificate.
"JOHN HANCOCK" has the meaning assigned in the Preliminary Statement
hereto.
"JOHN HANCOCK LOANS" means, collectively, the Mortgage Loans sold to
the Depositor pursuant to the Mortgage Loan Purchase Agreement III and shown on
Schedule III hereto.
"JUNIOR INDEBTEDNESS" means any indebtedness of any Mortgagor that is
secured by a lien that is junior in right of payment to the lien of the Mortgage
securing the related Mortgage Note.
"LATE COLLECTIONS" means, with respect to any Mortgage Loan, all
amounts received during any Collection Period, whether as late payments or as
Liquidation Proceeds, Insurance Proceeds, Condemnation Proceeds, Purchase
Proceeds or otherwise, that represent
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payments or collections of Scheduled Payments due but delinquent for a previous
Collection Period and not previously recovered.
"LATE FEES" shall mean a fee payable to the Master Servicer or the
Special Servicer, as the case may be, to the extent actually collected from the
Mortgagor as provided in the related Mortgage Loan in connection with a late
payment made by such Mortgagor.
"LEGENDED DEFINITIVE CERTIFICATE" means a Definitive Certificate
bearing the Securities Legend.
"LIQUIDATION EXPENSES" means reasonable and direct expenses incurred
by the Special Servicer on behalf of the Trust in connection with the
enforcement and liquidation of any Specially Serviced Mortgage Loan or REO
Property acquired in respect thereof including, without limitation, reasonable
legal fees and expenses, committee or referee fees, property manager fees, and,
if applicable, brokerage commissions and conveyance taxes for such Specially
Serviced Mortgage Loan. All Liquidation Expenses relating to enforcement and
disposition of the Specially Serviced Mortgage Loan shall be paid (i) out of
income from the related REO Property, to the extent available or (ii) advanced
by the Master Servicer, subject to Section 4.4 hereof, as a Servicing Advance.
"LIQUIDATION FEE" means a fee equal to the product of (x) 1.0%, (y)
the Liquidation Proceeds received in connection with a final disposition of a
Specially Serviced Mortgage Loan or REO Property and (z) 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 the related REO Mortgage Loan and accrued and unpaid
interest thereof.
"LIQUIDATION PROCEEDS" means proceeds from the sale or liquidation of
a Mortgage Loan or related REO Property, net of Liquidation Expenses and any
related Advances and interest thereon.
"LIQUIDATION REALIZED LOSS" means, with respect to each Mortgage Loan
or REO Property, as the case may be, as to which a Cash Liquidation or REO
Disposition has occurred, an amount equal to the sum, without duplication, of
(A) the Principal Balance of the Mortgage Loan (or deemed Principal Balance, in
the case of an REO Mortgage Loan) as of the date of the Cash Liquidation or REO
Disposition, plus (B) unpaid interest and interest accrued thereon at the
applicable Mortgage Rate, plus (C) any expenses incurred in connection with such
Mortgage Loan that are reimbursable to any Person, other than amounts previously
treated as Expense Losses or included in the definition of Liquidation Expenses
minus the sum of (i) REO Income applied as recoveries of principal or interest
on the related Mortgage Loan or REO Property, and (ii) Liquidation Proceeds
received during the Collection Period in which such Cash Liquidation or REO
Disposition occurred. REO Income and Liquidation Proceeds shall be applied first
against any Expense Losses (to the extent not included in the definition of
Liquidation Expenses) for such Mortgage Loan, the unpaid interest on the
Mortgage Loan, calculated as described in clause (B) above, and then against the
principal balance of such Mortgage Loan, calculated as described in clause (A)
above.
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"LOAN-TO-VALUE RATIO" means, as of any date with respect to a Mortgage
Loan, the fraction, expressed as a percentage, the numerator of which is the
principal balance of such Mortgage Loan at the date of determination and the
denominator of which is the value of the Mortgaged Property as shown on the most
recent Appraisal or valuation of the Mortgaged Property which is available as of
such date.
"LOCK-BOX ACCOUNT" shall have the meaning set forth in Section 8.3(g).
"LOCK-BOX AGREEMENT" means, with respect to any Mortgage Loan, any
lock-box agreement relating to such Mortgage Loan among the related Mortgagor, a
depositary institution and the Master Servicer pursuant to which a Lock-Box
Account is created.
"LOSSES" has the meaning set forth in Section 12.4.
"MASTER SERVICER" means Wells Fargo Bank, National Association and its
permitted successors or assigns.
"MASTER SERVICER REMITTANCE DATE" means for 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
Certificateholders 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.
"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 or (ii) any grace period permitted by the
related Mortgage Note.
"MODIFICATION FEE" means a fee, if any, collected from a Mortgagor by
the Master Servicer in connection with a modification of any Mortgage Loan other
than a Specially Serviced Mortgage Loan or collected by the Special Servicer in
connection with the modification of a Specially Serviced Mortgage Loan.
"MODIFICATION LOSS" means (i) a decrease in the principal balance of a
Mortgage Loan as a result of a modification thereof in accordance with the terms
hereof, (ii) any expenses connected with such modification, to the extent (x)
reimbursable to the Trustee, the Fiscal Agent, the Special Servicer or the
Master Servicer and (y) not recovered from the Mortgagor or (iii) in the case of
a modification of a Mortgage Loan that reduces the Mortgage Rate thereof, the
excess, on each Due Date, of the amount of interest that would have accrued at a
rate equal to the
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original Mortgage Rate, over interest that actually accrued on such Mortgage
Loan during the preceding Collection Period.
"MONEY TERM" means with respect to any Mortgage Loan, the Maturity
Date, Mortgage Rate, principal balance, amortization term or payment frequency
thereof or any provision thereof requiring the payment of a prepayment premium,
yield maintenance payment or percentage premium in connection with a principal
prepayment (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 monthly as of the related Determination Date
generally in the form and substance of Exhibit M, which sets forth, to the
extent applicable: (i) the amount, if any, of such distributions to the holders
of each Class of Certificates applied to reduce the respective Certificate
Balances thereof; (ii) the amount of such distribution to holders of each Class
of Certificates allocable to interest accrued at the respective Pass-Through
Rates, less any Net Aggregate Prepayment Interest Shortfalls; (iii) the number
of outstanding Mortgage Loans and the aggregate Principal Balance and Scheduled
Principal Balance of the Mortgage Loans at the close of business on such
Distribution Date; (iv) the number and aggregate Scheduled Principal Balance of
Mortgage Loans (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
preceding Collection Period, the Principal Balance and Scheduled Principal
Balance of the related Mortgage Loan as of the date of acquisition of the REO
Property; (vi) as of the related Determination Date (A) the book value of any
REO Property, (B) as to any REO Property sold during the related Collection
Period, the date of the related determination by the Special Servicer that it
has recovered all payments which it expects to be finally recoverable and the
amount of the proceeds of such sale deposited into the Certificate 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 Certificate Account, in each case identifying such REO Property
by the loan number of the related Mortgage Loan; (vii) the aggregate Certificate
Balance or Notional Amount, as the case may be, of each Class of Certificates
before and after giving effect to the distribution 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 Certificates for such Distribution Date; (x) the aggregate amount of
servicing compensation retained by or paid to the Master Servicer and the
Special Servicer; (xi) the amount of Unpaid Interest, Realized Losses or Expense
Losses, if any, incurred with respect to the Mortgage Loans; (xii) the aggregate
amount of Servicing Advances and P&I Advances outstanding that have been made by
the Master 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), (ii) and (xi) above, the amounts shall be expressed as a dollar
amount per $1,000 of original principal amount of the Certificates for all
Certificates of each applicable Class.
"MORTGAGE" means the mortgage, deed of trust or other instrument
securing a Mortgage Note.
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"MORTGAGE FILE" means the mortgage documents listed below:
(i) the original Mortgage Note bearing all intervening
endorsements, endorsed "Pay to the order of LaSalle National Bank, as
trustee for Morgan Stanley Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 1998-WF1, without recourse" or if the original
Mortgage Note is not included therein, then a lost note affidavit, with a
copy of the Mortgage Note attached thereto;
(ii) the original Mortgage, with evidence of recording thereon,
and, if the Mortgage was executed pursuant to a power of attorney, a
certified true copy of the power of attorney certified by the public
recorder's office, with evidence of recording thereon, or certified by a
title insurance company or escrow company to be a true copy thereof;
provided that if such original Mortgage or power of attorney cannot be
delivered with evidence of recording thereon on or prior to the Closing
Date because of a delay caused by the public recording office where such
original Mortgage has been delivered for recordation or because such
original Mortgage has been lost, the Depositor shall deliver or cause to be
delivered to the Trustee a true and correct copy of such Mortgage, together
with (A) in the case of a delay caused by the public recording office, an
Officer's Certificate of the applicable Seller stating that such original
Mortgage has been sent to the appropriate public recording official for
recordation or (B) in the case of an original Mortgage that has been lost
after recordation, a copy of such Mortgage, certified by the appropriate
county recording office where such Mortgage is recorded to be a true and
complete copy of the original recorded Mortgage;
(iii) the originals of all Money Term or material modification,
consolidation and extension agreements, if any, with evidence of recording
thereon, or if such original modification, consolidation and extension
agreements have been delivered to the appropriate recording office for
recordation and either have not yet been returned with evidence of
recordation thereon or have been lost after recordation, true copies of
such modifications, consolidations and extensions certified by the
applicable Seller together with (A) in the case of a delay caused by the
public recording office, an Officer's Certificate of the applicable Seller
stating that such original modification, consolidation or extension
agreement has been dispatched or sent to the appropriate public recording
official for recordation or (B) in the case of an original modification,
consolidation or extension agreement that has been lost after recordation,
a copy of such modification, consolidation or extension agreement certified
by the appropriate county recording office where such document is recorded
to be a true and complete copy of the original recorded modification,
consolidation or extension agreement, and the originals of all assumption
agreements, if any, each signed by the holder of record in favor of
"LaSalle National Bank, as trustee for Morgan Stanley Capital I Inc.,
Commercial Mortgage Pass-Through Certificates, Series 1998-WF1;"
(iv) an original Assignment of Mortgage for each Mortgage Loan,
in form and substance acceptable for recording, signed by the holder of
record in favor of "LaSalle National Bank, as trustee for Morgan Stanley
Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series
1998-WF1;"
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(v) originals of all intervening Assignments of Mortgage, if any,
with evidence of recording thereon or, if such original Assignments of
Mortgage have been delivered to the appropriate recorder's office for
recordation, certified true copies of such Assignments of Mortgage
certified by the applicable Seller, or in the case of an original blanket
intervening Assignment retained by the applicable Seller, a copy thereof
certified by the applicable Seller or, if any original intervening
Assignment has not been returned from the applicable recording office or
has been lost, a true and correct copy thereof, together with (A) in the
case of a delay caused by the public recording office, an Officer's
Certificate of the applicable Seller stating that such original intervening
Assignment has been sent to the appropriate public recording official for
recordation or (B) in the case of an original intervening Assignment that
has been lost after recordation, a copy of such intervening Assignment
certified by the appropriate county recording office where such assignment
is recorded to be a true and complete copy of the original recorded
intervening Assignment;
(vi) if the related Assignment of Leases is separate from the
Mortgage, the original of such Assignment of Leases with evidence of
recording thereon or, if such Assignment of Leases has not been returned
from the applicable public recording office, a copy of such Assignment of
Leases certified by the applicable Seller to be a true and complete copy of
the original Assignment of Leases submitted for recording, together with
(A) an original of each assignment of such Assignment of Leases with
evidence of recording thereon and showing a complete recorded chain of
assignment from the named assignee to the holder of record, and if any such
assignment of such Assignment of Leases has not been returned from the
applicable public recording office, a copy of such assignment certified by
the applicable Seller to be a true and complete copy of the original
assignment submitted for recording, and (B) an original assignment of such
Assignment of Leases, in recordable form, signed by the holder of record in
favor of "LaSalle National Bank, as trustee for Morgan Stanley Capital I
Inc., Commercial Mortgage Pass-Through Certificates, Series 1998-WF1,"
which assignment may be effected in the related Assignment of Mortgage;
(vii) the original of each guaranty, if any, constituting
additional security for the repayment of such Mortgage Loan;
(viii) the original Title Insurance Policy or in the event such
original title insurance policy is unavailable, any one of an attorney's
opinion of title, or an original binder or actual title commitment or a
copy thereof certified by the title company with the original policy of
title insurance to follow within 180 days of the Closing Date or a
preliminary title report;
(ix) UCC financing statements (together with all assignments
thereof to the Trustee) executed and delivered in connection with any
Mortgage Loan; and
(x) copies of ground leases related to any Mortgage Loan where
the Mortgagor is the lessee under such lease and there is a lien in favor
of the mortgagee in such lease.
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"MORTGAGE LOAN" means a Mortgage Note secured by a Mortgage, and all
amendments and modifications thereof, identified on the Mortgage Loan Schedule,
as amended from time to time, and conveyed, transferred, sold, assigned to or
deposited with the Trustee pursuant to Section 2.1 or Section 2.3.
"MORTGAGE LOAN PURCHASE AGREEMENT" means Mortgage Loan Purchase
Agreement I, Mortgage Loan Purchase Agreement II or Mortgage Loan Purchase
Agreement III as the case may be.
"MORTGAGE LOAN PURCHASE AGREEMENT I" means that certain Mortgage Loan
Purchase Agreement dated as of March 1, 1998 between Wells Fargo and the
Depositor with respect to the Wells Fargo Loans.
"MORTGAGE LOAN PURCHASE AGREEMENT II" means that certain Mortgage Loan
Purchase Agreement between MSMC and the Depositor dated as of March 1, 1998 with
respect to the MSMC Loans.
"MORTGAGE LOAN PURCHASE AGREEMENT III" means that certain Mortgage
Loan Purchase Agreement between John Hancock and the Depositor dated as of March
1, 1998 with respect to the John Hancock Loans.
"MORTGAGE LOAN SCHEDULE" or "LOAN SCHEDULE" means collectively the
schedule attached hereto as Schedule I, which identifies each MSMC Loan, the
schedule attached hereto as Schedule II, which identifies each Wells Fargo Loan,
and the schedule attached hereto as Schedule III, which identifies each John
Hancock 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.
"MORTGAGE RATE" means, for a given Mortgage Loan, the per annum rate
at which interest accrues on such Mortgage Loan.
"MORTGAGED PROPERTY" means the real property, together with
improvements thereto, securing the indebtedness of the Mortgagor under the
related Mortgage Loan.
"MORTGAGEE" means, with 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 on a Mortgage Note.
"MSMC" has the meaning assigned in the Preliminary Statement hereto.
"MSMC LOANS" means, collectively, those Mortgage Loans sold to the
Depositor pursuant to Mortgage Loan Purchase Agreement II and shown on Schedule
I hereto.
"NET AGGREGATE PREPAYMENT INTEREST SHORTFALL" means for any
Distribution Date, the excess, if any, of aggregate Prepayment Interest
Shortfalls over the sum of (i) the
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portion of the aggregate Servicing Fee for the related Collection Period
calculated in respect of all the Mortgage Loans (including Mortgage Loans
related to REO Properties) less the portion thereof payable to the Sub-Servicers
as Sub-Servicing Fees and (ii) the aggregate Prepayment Interest Excesses for
such Collection Period.
"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 an office of an agent of the
Trustee, the Certificate Registrar or the Paying Agent, as the Trustee, the
Certificate Registrar or the Paying Agent may designate from time to time by
written notice to the Depositor and the Certificateholders.
"1933 ACT" means the Securities Act of 1933, as amended.
"1934 ACT" means the Securities Exchange Act of 1934, as amended.
"NONDISQUALIFICATION OPINION" means a written Opinion of Counsel to
the effect that a contemplated action will neither cause any REMIC Pool to fail
to qualify as a REMIC at any time that any Certificates are outstanding nor
cause a "prohibited transaction," "prohibited contribution" or any other tax to
be imposed on any REMIC Pool or the Trust.
"NONRECOVERABLE ADVANCE" means the portion of any Advance (including
interest accrued thereon at the Advance Rate) previously made or proposed to be
made by the Master Servicer, the Trustee or the Fiscal Agent that, in its sole
discretion, exercised in good faith and in accordance with the Servicing
Standard, that will not or, in the case of a current delinquency, would not be,
ultimately recoverable, from Insurance Proceeds, Condemnation Proceeds,
Liquidation Proceeds or Purchase Proceeds from any collections with respect to
the related Mortgage Loan or REO Property, as evidenced by an Officer's
Certificate delivered pursuant to Section 4.4. Such Officer's Certificate shall
be delivered to the Trustee (upon which the Trustee may conclusively rely) or to
the Depositor (if the Trustee or Fiscal Agent is delivering such Officer's
Certificate) and (in either case) to the Special Servicer in the time periods as
specified in Section 4.4 and shall include the information and reports set forth
in Section 4.4. In determining whether an Advance with respect to any Mortgage
Loan will be recoverable, the Master Servicer, the Trustee or the Fiscal Agent,
as applicable, shall take into account amounts that may be realized on the
related Mortgaged Property in its "as is" or then current condition and
occupancy. Absent bad faith, the Master Servicer's determination as to the
recoverability of any Advance shall be conclusive and binding on the
Certificateholders, the Trustee and the Fiscal Agent and may be relied on by the
Trustee and the Fiscal Agent with respect to the obligation of the Trustee or
the Fiscal Agent to make such Advance.
"NON-REGISTERED CERTIFICATE" means unless and until registered under
the Securities Act, any Class X-1, Class F, Class G, Class H, Class J, Class K,
Class L or Residual Certificate.
"NOTIONAL AMOUNT" means, as of any date of determination: (i) with
respect to all of the Class X-1 Certificates as a Class, the Class X-1 Notional
Amount as of such date of
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determination; (ii) with respect to any Class X-1 Certificate, the product of
the Percentage Interest evidenced by such Certificate and the Class X-1 Notional
Amount as of such date of determination; (iii) with respect to all of the Class
X-2 Certificates as a Class, the Class X-2 Notional Amount as of such date of
determination; and (iv) with respect to any Class X-2 Certificate, the product
of the Percentage Interest evidenced by such Certificate and the Class X-2
Notional Amount as of such date of determination.
"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, 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
9.37(a).
"OPERATING ADVISER VOTES" shall mean the votes cast at a duly called
meeting by the Holders of the Controlling Class to elect an Operating Adviser.
"OPINION OF COUNSEL" means a written opinion of counsel addressed to
the Trustee, reasonably acceptable in form and substance to the Trustee, and who
may be in-house or outside counsel to the party required to deliver such opinion
but who, in the good faith judgment of the Trustee, must be Independent outside
counsel knowledgeable of the issues occurring in the practice of securitization
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.
"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" shall mean, (i) with respect to any Mortgage Loan or
Specially Serviced Mortgage Loan as to which all or a portion of the Scheduled
Payment (other than a Balloon Payment) due during the related Collection Period
was not received by the Master Servicer as of the related Determination Date,
the portion of such Scheduled Payment not received; (ii) with respect to any
Balloon Mortgage Loan (including any REO Property as to which the related
Mortgage Loan provided for a Balloon Payment) as to which a Balloon Payment was
due during or prior to the related Collection Period but was delinquent, in
whole or in part, as of the related Determination Date, an amount equal to the
excess, if any, of the Assumed Scheduled Payment for such Balloon Mortgage Loan
for the related Collection Period, over any Late Collections received in respect
of such Balloon Payment during such Collection Period; and (iii) with respect to
each REO Property, an amount equal to the excess, if any, of the Assumed
Scheduled Payment for the Mortgage Loan related to such REO Property during the
related Collection Period, over remittances of REO Income to the Master Servicer
by the Special Servicer, reduced by any amounts required to be paid as taxes on
such REO Income (including taxes imposed pursuant to Section 860G(c) of the
Code); provided, however, that the interest portion of any Scheduled Payment or
Assumed Scheduled Payment shall be advanced at a per
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annum rate equal to the sum of the REMIC I Net Mortgage Rate relating to such
Mortgage Loan or Mortgage Loan relating to such REO Property and the Trustee Fee
Rate, such that the Scheduled Payment or Assumed Scheduled Payment to be
advanced as a P&I Advance shall be net of the Servicing Fee; and provided,
further, that the Scheduled Payment or Assumed Scheduled Payment for any
Mortgage Loan which has been modified shall be calculated based on its terms as
modified and provided, further, that the amount of any P&I Advance with respect
to a Mortgage Loan as to which there has been an Appraisal Reduction will be an
amount equal to the product of (i) the amount required to be advanced without
giving effect to this proviso and (ii) a fraction, the numerator of which is the
Principal Balance of such Mortgage Loan as of the immediately preceding
Determination Date less any Appraisal Reduction and the denominator of which is
the Principal Balance of the Mortgage Loan as of such Determination Date. All
P&I Advances for any Mortgage Loans that have been modified shall be calculated
on the basis of their terms as modified.
"P&I ADVANCE AMOUNT" means, with respect to any Mortgage Loan or REO
Property, the amount of the P&I Advance for each Mortgage Loan computed for any
Distribution Date.
"PARTICIPANT" means a broker, dealer, bank, other financial
institution or other Person for whom the Clearing Agency effects book-entry
transfers and pledges of securities deposited with the Clearing Agency.
"PASS-THROUGH ENTITY" means any of (A) a regulated investment company
described in Section 851 of the Code, a real estate investment trust described
in Section 856 of the Code, 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 Class R-I, Class R-II or
Class R-III Certificate as nominee for another person.
"PASS-THROUGH RATE" or "PASS-THROUGH RATES" means initially with
respect to any Class of REMIC I Regular Interests, REMIC II Regular Interests or
REMIC Regular Certificates, other than the Class A-2 Certificates and X
Certificates, for any Distribution Date, the rate, if any, set forth in the
Preliminary Statement hereto. For any Distribution Date occurring thereafter,
the Pass-Through Rates for (i) the REMIC I Regular Interests shall equal the
REMIC I Net Mortgage Rate on the related Mortgage Loan for such Distribution
Date, (ii) the REMIC II Regular Interests shall equal the Weighted Average REMIC
I Net Mortgage Rate for such Distribution Date, (iii) with respect to the Class
A-1, Class B, Class C, Class D, Class E, Class F, Class G, Class H, Class J and
Class K Certificates, the Class A-2A Component and the Class A-2B Component, the
lesser of (A) the fixed rate corresponding to such Class or such Component set
forth in the Preliminary Statement hereto and (B) the Weighted Average REMIC I
Net Mortgage Rate for such Distribution Date, (iv) the Class X-1 Certificates,
the per annum rate equal to the quotient of the Accrued Certificate Interest
thereon for such Distribution Date and the Class X-1 Notional Amount and (v) the
Class X-2 Certificates, the per annum rate equal to the quotient of the Accrued
Certificate Interest thereon for such Distribution Date and the Class X-2
Notional Amount.
"PAYING AGENT" means the paying agent appointed pursuant to Section
3.10.
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"PERCENTAGE INTEREST" means with respect to each Class of Certificates
other than the Residual Certificates, the fraction of such Class evidenced by
such Certificate, expressed as a percentage (carried to four decimal places and
rounded, if necessary), the numerator of which is the Certificate Balance or
Notional Amount, as applicable, represented by such Certificate determined as of
the Closing Date (as stated on the face of such Certificate) and the denominator
of which is the aggregate Certificate Balance or Notional Amount, as applicable,
of all of the Certificates of such Class determined as of the Closing Date. With
respect to each Residual Certificate, the percentage interest in distributions
(if any) 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, limited liability company,
partnership, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"PLACEMENT AGENT" means any of Morgan Stanley & Co. Incorporated or
Bear Stearns & Co. Inc.
"PHASE I ENVIRONMENTAL REPORT" means a report prepared at the expense
of the Person desiring to contribute such property, by an Independent Person who
regularly conducts environmental site assessments in accordance with then
current standards imposed by institutional commercial mortgage lenders and who
has had not less than five years experience in such matters which indicates such
property is in compliance with applicable Environmental Laws and that there are
no circumstances present at such property relating to the use, management or
disposal of any hazardous substances, hazardous materials, hazardous wastes or
petroleum based materials for which investigation, testing, monitoring,
containment, clean up or remediation could be required under any Federal, state
or local law or regulation.
"PLAN" has the meaning set forth in Section 3.3(d).
"PLAN ASSET REGULATIONS" means the Department of Labor regulations set
forth in 29 C.F.R.ss. 2510.3-101.
"PREPAYMENT INTEREST EXCESS" means for any Distribution Date and the
related Collection Period, during which a full or partial Principal Prepayment
is made after the Due Date for such Mortgage Loan through and including the last
day of the Collection Period, the amount of interest that accrues on the
Mortgage Loan from such Due Date to the date such payment was made (net of the
Servicing Fee, the Special Servicing Standby Fee and the Trustee Fee), to the
extent collected.
"PREPAYMENT INTEREST SHORTFALL" means, with respect to any
Distribution Date, a shortfall in the collection of a full month's interest on
any Mortgage Loan by reason of a full or partial Principal Prepayment (including
early payment of a Balloon Payment) made during any Collection Period prior to
the Due Date for such Mortgage Loan in such Collection Period. The amount of any
Prepayment Interest Shortfall shall equal the excess of (A) the aggregate amount
of interest which would have accrued on the Scheduled Principal Balance of such
Mortgage
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Loan for the 30 days ending on such Due Date if such Principal Prepayment or
Balloon Payment had not been made over (B) the aggregate interest that did so
accrue through the date such payment was made.
"PREPAYMENT PREMIUM" means with respect to any Distribution Date, the
aggregate of all prepayment premiums, yield maintenance payments or percentage
premiums, if any, received during the related Collection Period in connection
with Principal Prepayments.
"PRINCIPAL BALANCE" means, with respect to any Mortgage Loan or REO
Mortgage Loan, for purposes of performing calculations with respect to any
Distribution Date, the principal balance of such Mortgage Loan or the related
REO Mortgage Loan outstanding as of the Cut-off Date after taking into account
all principal and interest payments made or due prior to the Cut-Off Date,
reduced (to not less than zero) by (i) any payments or other collections of
amounts allocable to principal on such Mortgage Loan that have been collected or
received during any preceding Collection Period, other than any Scheduled
Payments due in any subsequent Collection Period, and (ii) the principal portion
of any Realized Loss incurred in respect of such Mortgage Loan during any
preceding Collection Period.
"PRINCIPAL BALANCE CERTIFICATES" means, collectively, the Class A,
Class B, Class C, Class D, Class E, Class F, Class G, Class H, Class J, Class K
and Class L Certificates.
"PRINCIPAL DISTRIBUTION AMOUNT" means, on any Distribution Date, the
sum of the following amounts: (i) the principal portion of all Scheduled
Payments (other than the principal portion of Balloon Payments) and any Assumed
Scheduled Payments due or deemed due, as the case may be, in respect of the
Mortgage Loans and any REO Mortgage Loans for their respective Due Dates
occurring during the related Collection Period; (ii) all payments (including
Principal Prepayments and the principal portion of Balloon Payments) and any
other collections (including Liquidation Proceeds, Condemnation Proceeds,
Insurance Proceeds, Purchase Proceeds and REO Income) received on or in respect
of the Mortgage Loans during the related Collection Period and that were
identified and applied by the Master Servicer as recoveries of principal
thereof, in each case net of any portion of such payment or other collection
that represents a recovery of the principal portion of any Scheduled Payment
(other than a Balloon Payment) due, or of the principal portion of any Assumed
Scheduled Payment deemed due, in respect of the related Mortgage Loan on a Due
Date during or prior to the related Collection Period and not previously
recovered.
"PRINCIPAL PREPAYMENT" means any voluntary or involuntary payment or
collection of principal on a Mortgage Loan which is received or recovered in
advance of its scheduled Due Date and applied to reduce the principal balance of
the Mortgage Loan in advance of its scheduled Due Date, including, without
limitation, all proceeds, to the extent allocable to principal, received from
the payment of cash in connection with a substitution shortfall pursuant to
Section 2.3.
"PRIVATE PLACEMENT MEMORANDUM" has the meaning set forth in the
preliminary statement hereto.
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"PROPOSED DISPOSITION" means a proposed disposition of any Defaulted
Mortgage Loan or the Mortgaged Property related thereto to be performed as
provided in Section 9.15 or 9.17 of this Agreement.
"PROSPECTUS" has the meaning set forth in the preliminary statement
hereto.
"PROSPECTUS SUPPLEMENT" has the meaning set forth in the preliminary
statement hereto.
"PURCHASE PRICE" means, with respect to the repurchase of a Mortgage
Loan or REO Property pursuant to Article II of this Agreement, a price equal to
the sum of (A) 100% of the unpaid principal balance of such Mortgage Loan (or
deemed principal balance, in the case of an REO Property), plus (B) accrued but
unpaid interest thereon calculated at the Mortgage Rate to, but not including,
the Due Date in the Collection Period in which such purchase occurs, plus (C)
the amount of any expenses related to such Mortgage Loan or REO Property
(including any Servicing Advances, Advance Interest related to such Mortgage
Loan and any Special Servicer Fees and Liquidation Fees) that are reimbursable
to the Master Servicer, the Special Servicer, the Trustee or the Fiscal Agent.
"PURCHASE PROCEEDS" means any cash amounts received by the Master
Servicer in connection with: (i) the repurchase of a Mortgage Loan by a Seller
pursuant to Section 2.3 or (ii) the purchase of the Mortgage Loans and REO
Properties by the Depositor, the Master Servicer, the Special Servicer or the
holders of the Class R-I Certificates pursuant to Section 10.1(b).
"QIB" means a "qualified institutional buyer," as defined in Rule
144A.
"QUALIFIED INSURER" means, (i) with respect to any Mortgage Loan, an
insurance company duly qualified as such under the laws of the state in which
the related Mortgaged Property is located, duly authorized and licensed in such
state to transact the applicable insurance business and to write the insurance
provided, and that has a claim paying ability rating no lower than two ratings
categories (without regard to pluses or minuses or numerical qualifiers) lower
than the highest rating of any outstanding Class of Certificates from time to
time, but in no event lower than "BBBq" by S&P and "BBB" by DCR (if rated by
DCR) or if not rated by DCR, otherwise approved by DCR and (ii) with respect to
the Servicer Errors and Omissions Insurance Policy or Servicer Fidelity Bond an
insurance company that has a claim paying ability a rating of no lower than two
ratings categories (without regard to pluses or minuses or numerical qualifiers)
lower than the highest rating of any outstanding Class of Certificates from time
to time, but in no event lower than "BBBq" by S&P and "BBB" by DCR (if rated by
DCR) or if not rated by DCR, otherwise approved by DCR, or (iii) in either case,
a company not satisfying clause (i) or (ii) but with respect to which Rating
Agency Confirmation is obtained.
"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.
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"QUALIFYING LEASEHOLD" means a leasehold interest in real property
extending or renewable automatically for a period of at least 30 years, or at
least 10 years beyond the Maturity Date of the related Mortgage Loan.
"QUALIFYING SUBSTITUTE MORTGAGE LOAN" means, in the case of a Mortgage
Loan substituted for a Deleted Mortgage Loan, a Mortgage Loan which, on the date
of substitution, (i) has a principal balance, after deduction of the principal
portion of the Scheduled Payment due in the month of substitution, not in excess
of the principal balance of the Deleted Mortgage Loan; provided, however, that,
to the extent that the principal balance of such Mortgage Loan is less than the
principal balance of the Deleted Mortgage Loan, then such differential in
principal amount, together with interest thereon at the Mortgage Rate on the
related Mortgage Loan from the date as to which interest was last paid through
the last day of the month in which such substitution occurs, shall be paid by
the party effecting such substitution to the Master Servicer for deposit into
the Certificate Account, and shall be treated as a Principal Prepayment
hereunder; (ii) is accruing interest at a rate of interest at least equal to
that of the Deleted Mortgage Loan; (iii) has a remaining term to stated maturity
not greater than, and not more than two years less than, that of the Deleted
Mortgage Loan; (iv) 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 current loan-to-value ratio of the Deleted Mortgage
Loan; (v) will comply with all of the representations and warranties relating to
Mortgage Loans set forth herein, as of the date of substitution; (vi) has a
Phase I Environmental Report relating to the related Mortgaged Property in its
Mortgage Files and such Phase I Environmental Report does not, in the good faith
reasonable judgment of the Special Servicer, consistent with the Servicing
Standard raise material issues that have not been adequately addressed; and
(vii) as to which the Trustee has received an Opinion of Counsel, at the related
Seller's expense, that such Mortgage Loan is a "qualified replacement mortgage"
within the meaning of Section 860G(a)(4) of the Code; provided that no Mortgage
Loan may have a Maturity Date after the date three years prior to the Final
Rated Distribution Date, and provided, further, that no such Mortgage Loan shall
be substituted for a Deleted Mortgage Loan unless Rating Agency Confirmation is
obtained. In the event that either one mortgage loan is substituted for more
than one Deleted Mortgage Loan or more than one mortgage loan is substituted for
one or more Deleted Mortgage Loans, then (A) the principal balance referred to
in clause (i) above shall be determined on the basis of aggregate principal
balances and (B) the rates referred to in clauses (ii) above and the remaining
term to stated maturity referred to in clause (iii) 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, which shall deliver a copy of such certification to the Special
Servicer promptly, and in any event within five Business Days following the
Trustee's receipt of such certification.
"RATING AGENCIES" means DCR and S&P.
"RATING AGENCY CONFIRMATION" means, with respect to any matter,
confirmation in writing by each Rating Agency that a proposed action, failure to
act, or other event specified herein will not in and of itself result in the
withdrawal, downgrade, or qualification of the rating assigned by such Rating
Agency to any Class of Certificates then rated by such Rating Agency.
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"REALIZED INTEREST LOSS" means (i) in the case of a Liquidation
Realized Loss, the portion of any Liquidation Realized Loss that exceeds the
Realized Principal Loss on the related Mortgage Loan, (ii) in the case of a
Bankruptcy Loss, the portion of such Realized Loss attributable to accrued
interest on the related Mortgage Loan, (iii) in the case of an Expense Loss, an
Expense Loss resulting in any period from the payment of the Special Servicing
Fee or (iv) in the case of a Modification Loss, a Modification Loss described in
clause (ii) of the definition thereof.
"REALIZED LOSS" means a Liquidation Realized Loss, a Modification
Loss, a Bankruptcy Loss or an Expense Loss. Realized Losses on a Mortgage Loan
are allocated first to the principal balance of, and then to interest on such
Mortgage Loan.
"REALIZED PRINCIPAL LOSS" means (i) in the case of a Liquidation
Realized Loss, the amount of such Realized Loss, to the extent that it does not
exceed the principal balance of the Mortgage Loan (or deemed principal balance,
in the case of REO Property), (ii) in the case of a Modification Loss, the
amount of such Modification Loss described in clause (i) of the definition
thereof, (iii) in the case of a Bankruptcy Loss, the portion of such Realized
Loss attributable to the reduction in the principal balance of the related
Mortgage Loan, and (iv) in the case of an Expense Loss, the portion thereof not
treated as a Realized Interest Loss.
"RECORD DATE" means, for each Distribution Date and each Class of
Certificates, the close of business on the last Business Day of the month
immediately preceding the month in which such Distribution Date occurs.
"RECOVERIES" means, as of any Distribution Date, any amounts recovered
with respect to a Mortgage Loan or REO Property following the period in which a
Final Recovery Determination occurs plus other amounts defined as "Recoveries"
herein.
"REGISTERED CERTIFICATES" means, collectively, the Class A-1, Class
A-2, Class B, Class C, Class D, Class E and Class X-2 Certificates.
"REGULATION S" means Regulation S under the 1933 Act.
"REGULATION S CERTIFICATE" means a written certification substantially
in the form set forth in Exhibit F hereto certifying that a beneficial owner of
an interest in a Regulation S Temporary Global Certificate is not a U.S. Person
(as defined in Regulation S).
"REGULATION S GLOBAL CERTIFICATES" means the Regulation S Permanent
Global Certificates together with the Regulation S Temporary Global
Certificates.
"REGULATION S PERMANENT GLOBAL CERTIFICATE" means any single permanent
global Certificate, in definitive, fully registered form without interest
coupons received in exchange for a Regulation S Temporary Global Certificate.
"REGULATION S TEMPORARY GLOBAL CERTIFICATE" means, with respect to any
Class of Certificates offered and sold outside of the United States in reliance
on Regulation S, a single temporary global Certificate, in definitive, fully
registered form without interest coupons.
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"REHABILITATED MORTGAGE LOAN" means any Specially Serviced Mortgage
Loan with respect to which (i) three consecutive Scheduled Payments have been
made (in the case of any such Mortgage Loan that was modified, based on the
modified terms), (ii) no other Servicing Transfer Event has occurred and is
continuing (or with respect to determining whether a Required Appraisal Loan is
a Rehabilitated Mortgage Loan for applying Appraisal Reductions, no other
Appraisal Event has occurred and is continuing) and (iii) the Trust has been
reimbursed for all costs incurred as a result of the occurrence of a Servicing
Transfer Event or such amounts have been forgiven.
"RELEASE DATE" means the date 40 days after the later of (i) the
commencement of the offering of the Certificates and (ii) the Closing Date.
"REMIC" means a real estate mortgage investment conduit within the
meaning of Section 860D of the Code.
"REMIC I" means the segregated pool of assets consisting of the
Mortgage Loans, such amounts as shall from time to time be held in the
Certificate Account and the Distribution Account, the Insurance Policies and any
REO Properties, for which a REMIC election has been 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 NET MORTGAGE RATE" means, as to any REMIC I Regular Interest,
a rate per annum equal to the Mortgage Rate for the related Mortgage Loan as of
the Cut-Off Date (and without regard to any modification, waiver or amendment of
the terms thereof following the Cut-Off Date) minus the Administrative Cost
Rate.
"REMIC I REGULAR INTERESTS" means, collectively, the uncertificated
interests designated as "regular interests" in REMIC I, which shall consist of,
with respect to each Mortgage Loan, an interest having an initial Certificate
Balance equal to the Cut-Off Date Scheduled Principal Balance of such Mortgage
Loan, and which has a Pass-Through Rate equal to the REMIC I Net Mortgage Rate
of such Mortgage Loan.
"REMIC II" means the segregated pool of assets consisting of the REMIC
I Regular Interests for which a REMIC election has been made pursuant to Section
12.1(a) hereof.
"REMIC II INTERESTS" means, collectively, the REMIC II Regular
Interests and the Class R-II Certificates.
"REMIC II REGULAR INTEREST A-1" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having a Certificate Balance equal to the aggregate Certificate Balance
of the Class A-1 Certificates, and which has a Pass-Through Rate equal to the
Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST A-2A" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate
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Balance equal to $129,715,000, and which has a Pass-Through Rate equal to the
Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST A-2B" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having a Certificate Balance equal to $523,600,000, and which has a
Pass-Through Rate equal to the Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST B" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having a Certificate Balance equal to the aggregate Certificate Balance
of the Class B Certificates, and which has a Pass-Through Rate equal to the
Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST C" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having a Certificate Balance equal to the aggregate Certificate Balance
of the Class C Certificates, and which has a Pass-Through Rate equal to the
Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST D" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having a Certificate Balance equal to the aggregate Certificate Balance
of the Class D Certificates, and which has a Pass-Through Rate equal to the
Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST E" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having a Certificate Balance equal to the aggregate Certificate Balance
of the Class E Certificates, and which has a Pass-Through Rate equal to the
Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST F" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having a Certificate Balance equal to the aggregate Certificate Balance
of the Class F Certificates, and which has a Pass-Through Rate equal to the
Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST G" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having a Certificate Balance equal to the aggregate Certificate Balance
of the Class G Certificates, and which has a Pass-Through Rate equal to the
Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST H" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having a Certificate Balance equal to the aggregate Certificate Balance
of the Class H Certificates, and which has a Pass-Through Rate equal to the
Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST J" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having a Certificate Balance equal to the aggregate Certificate Balance
of the Class J Certificates, and which has a Pass-Through Rate equal to the
Weighted Average REMIC I Net Mortgage Rate.
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"REMIC II REGULAR INTEREST K" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having a Certificate Balance equal to the aggregate Certificate Balance
of the Class K Certificates, and which has a Pass-Through Rate equal to the
Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST L" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having a Certificate Balance equal to the aggregate Certificate Balance
of the Class L Certificates, and which has a Pass-Through Rate equal to the
Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTERESTS" means, collectively, the REMIC II Regular
Interest A-1, REMIC II Regular Interest A-2A, REMIC II Regular Interest A-2B,
REMIC II Regular Interest B, REMIC II Regular Interest C, REMIC II Regular
Interest D, REMIC II Regular Interest E, REMIC II Regular Interest F, REMIC II
Regular Interest G, REMIC II Regular Interest H, REMIC II Regular Interest J,
REMIC II Regular Interest K and REMIC II Regular Interest L.
"REMIC III CERTIFICATES" has the meaning set forth in the final
paragraph of the Preliminary Statement hereto.
"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.
"REMIC REGULAR CERTIFICATES" means, collectively, the Class A, Class
X-1, Class X-2, Class B, Class C, Class D, Class E, Class F, Class G, Class H,
Class J, Class K and Class L Certificates.
"RENT LOSS POLICY" or "RENT LOSS INSURANCE" means a policy of
insurance generally insuring against loss of income or rent resulting from
hazards or acts of God.
"RENTS FROM REAL PROPERTY" means, with respect to any REO Property,
income of the character described in Section 856(d) of the Code.
"REO ACCOUNT" shall have the meaning set forth in Section 9.14(a)
hereof.
"REO DISPOSITION" means the receipt by the Master Servicer or the
Special Servicer of Liquidation Proceeds and other payments and recoveries
(including proceeds of a final sale) from the sale or other disposition of REO
Property.
"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 less any
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operating expenses, utilities, real estate taxes, management fees, insurance
premiums, expenses for maintenance and repairs and any other capital expenses
directly related to such REO Property paid 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.
"REPORT DATE" means the third Business Day before the related
Distribution Date.
"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 as to which an
Appraisal Event has occurred. A Mortgage Loan will cease to be a Required
Appraisal Loan at such time as it is a Rehabilitated Mortgage Loan.
"REQUIRED INSURANCE POLICY" means with respect to any Mortgaged
Property, any insurance policy that is required to be maintained from time to
time under this Agreement in respect of such Mortgaged Property, including each
Standard Hazard Insurance Policy and, if applicable, flood insurance policy.
"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 with specific responsibilities for the
matters contemplated by this Agreement and when used with respect to any
successor Trustee, any Vice President, Assistant Vice President, corporate trust
officer or any assistant corporate trust officer.
"REVERSE SEQUENTIAL ORDER" means sequentially to the Class L, Class K,
Class J, Class H, Class G, Class F, Class E, Class D, Class C, Class B and Class
A Certificates.
"RULE 144A" means Rule 144A under the 1933 Act.
"RULE 144A-IAI GLOBAL CERTIFICATE" means, with respect to any Class of
Certificates offered and sold in reliance on Rule 144A or to certain
institutional "accredited investors" within the meaning of Rule 501(a)(1), (2),
(3) or (7) of Regulation D of the 1933 Act, a single, permanent global
Certificate, in definitive, fully registered form without interest coupons.
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"S&P" means Standard & Poor's Ratings Services, a Division of The
McGraw-Hill Companies Inc., or its successor in interest.
"SCHEDULED PAYMENT" means each scheduled payment of principal of, and
interest on, a Mortgage Loan required to be paid on its Due Date by the
Mortgagor in accordance with the terms of the related Mortgage Note (excluding
all amounts of principal and interest which were due on or before the Cut-Off
Date, whenever received, and taking account of any modifications thereof and the
effects of any Debt Service Reduction Amounts and Deficient Valuation Amounts).
"SCHEDULED PRINCIPAL BALANCE" means, with respect to any Mortgage Loan
or REO Mortgage Loan, for purposes of performing calculations with respect to
any Distribution Date, the Principal Balance thereof minus the aggregate amount
of any P&I Advances of principal previously made with respect to such Mortgage
Loan or REO Mortgage Loan.
"SELLER" means MSMC, Wells Fargo or John Hancock, as the case may be.
"SENIOR CERTIFICATES" means the Class A, Class X-1 and Class X-2
Certificates.
"SERVICER ERRORS AND OMISSIONS INSURANCE POLICY" or "ERRORS AND
OMISSIONS INSURANCE POLICY" means an errors and omissions insurance policy
maintained by the Master Servicer, the Special Servicer, the Trustee or the
Fiscal Agent, as the case may be, in accordance with Section 8.2, Section 9.2
and Section 7.17, respectively.
"SERVICER FIDELITY BOND OR "FIDELITY BOND" means a bond or insurance
policy under which such insurer agrees to indemnify the Master Servicer, the
Special Servicer, the Trustee or the Fiscal Agent, as the case may be, (subject
to standard exclusions) for all losses (less any deductible) sustained as a
result of any theft, embezzlement, fraud or other dishonest act on the part of
the Master Servicer's, Special Servicer's, the Trustee's or the Fiscal Agent's
as the case may be, directors, officers or employees and is maintained in
accordance with Section 8.2, Section 9.2 and Section 7.17, respectively.
"SERVICER'S MORTGAGE FILE" means copies of mortgage documents listed
in the definition of Mortgage File relating to a Mortgage Loan in the possession
of the Master Servicer or originals of any of such documents released to the
Master Servicer from time to time pursuant to the terms of this Agreement.
"SERVICING ADVANCE" means any cost or expense of the Master Servicer,
the Trustee or the Fiscal Agent, as the case may be, designated as a Servicing
Advance pursuant to this Agreement and any other costs and expenses incurred by
the Master Servicer, the Trustee or the Fiscal Agent, as the case may be, to
protect and preserve the security for such Mortgage Loan.
"SERVICING FEE" means for each calendar month, as to each Mortgage
Loan (including Mortgage Loans relating to REO Properties), the portion of the
Servicing Fee Rate applicable to such month (determined in the same manner as
the applicable Mortgage Rate is determined for such Mortgage Loan for such
month) multiplied by the Scheduled Principal
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Balance of each Mortgage Loan immediately before the Due Date occurring in such
month, subject to reduction in respect of Compensating Interest, as set forth in
Section 8.10(c).
"SERVICING FEE RATE" means, with respect to each Mortgage Loan
(including any Mortgage Loan relating to an REO Property), the rate per annum
specified as such on the Mortgage Loan Schedule.
"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" means, with respect to the Master Servicer and
the Special Servicer the higher of the following standards of care:
(a) in the same manner in which and with the same care, skill,
prudence and diligence with which the Master Servicer or the Special
Servicer, as the case may be, services and administers similar mortgage
loans for other third-party portfolios, giving due consideration to
customary and usual standards of practice of prudent institutional
commercial mortgage lenders servicing their own mortgage loans and to the
maximization of the net present value of the mortgage loans; or
(b) the care, skill, prudence and diligence the Master Servicer
or the Special Servicer, as the case may be, uses for loans which it owns
and which are substantially the same as the Mortgage Loans, giving due
consideration to the maximization of the net present value of the mortgage
loans;
but without regard to: any relationship that the Master Servicer or Special
Servicer or any Affiliate of the Master Servicer or Special Servicer may have
with the related Mortgagor; the ownership of any Certificate by the Master
Servicer or Special Servicer or any Affiliate; the ownership of any Junior
Indebtedness by the Master Servicer or Special Servicer or any Affiliate with
respect to the Mortgaged Property securing any Mortgage Loan; the Master
Servicer or Special Servicer's right to receive compensation for its services
hereunder or with respect to any particular transaction; the servicing of the
Mortgage Loans that are not Specially Serviced Mortgage Loans by the Master
Servicer; and the Master Servicer's obligation to make Advances and Servicing
Advances as specified herein or the Master Servicer's obligation to repurchase
any Mortgage Loan under the Mortgage Loan Purchase Agreement I.
"SERVICING TRANSFER EVENT" means the occurrence of any of the
following events: (i) any Mortgage Loan as to which a Balloon Payment is past
due, and the Master Servicer has determined, in its good faith reasonable
judgment, that payment is unlikely to be made on or before the second succeeding
Due Date, or any other payment is more than 60 days past due or has not been
made on or before the second Due Date following the due date such payment was
due; (ii) any Mortgage Loan as to which, to the Master Servicer's knowledge, the
borrower has entered into or consented to bankruptcy, appointment of a receiver
or conservator or a similar insolvency or similar proceeding, or the borrower
has become the subject of a decree
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or order for such a proceeding and such proceeding shall have remained
undischarged or unstayed for a period of 60 days; (iii) any Mortgage Loan as to
which the Master Servicer shall have received notice of the foreclosure or
proposed foreclosure of any other lien on the Mortgaged Property; (iv) any
Mortgage Loan as to which the Master Servicer has knowledge of a default (other
than a failure by the related borrower to pay principal or interest) which in
the good faith reasonable judgment of the Master Servicer materially and
adversely affects the interests of the Certificateholders and which has occurred
and remains unremedied for the applicable grace period specified in such
Mortgage Loan (or, if no grace period is specified, 60 days); (v) any Mortgage
Loan as to which the borrower admits in writing its inability to pay its debts
generally as they become due, files a petition to take advantage of any
applicable insolvency or reorganization statute, makes an assignment for the
benefit of its creditors or voluntarily suspends payment of its obligations; and
(vi) any Mortgage Loan as to which, in the good faith reasonable judgment of the
Master Servicer, a default has occurred or in the judgment of the Master
Servicer is imminent or is likely to occur within 60 days.
"SPECIAL SERVICER" means CRIIMI MAE Services Limited Partnership or
any successor Special Servicer as herein provided.
"SPECIAL SERVICER COMPENSATION" means, with respect to any applicable
period, the sum of the Special Servicing Standby Fee, the Special Servicing Fees
and the Liquidation Fees.
"SPECIAL SERVICER MONTHLY REPORTS" mean the reports substantially in
the form of Exhibit P attached hereto.
"SPECIAL SERVICER REMITTANCE DATE" means the Business Day preceding
each Determination Date.
"SPECIAL SERVICING FEE" means, for each calendar month, as to each
Mortgage Loan which is a Specially Serviced Mortgage Loan, the fraction or
portion of the Special Servicing Fee Rate applicable to such month (determined
using the same interest accrual methodology that is applied with respect to the
Mortgage Rate for such Mortgage Loan for such month) multiplied by the Scheduled
Principal Balance of such Specially Serviced Mortgage Loan immediately before
the Due Date occurring in such month.
"SPECIAL SERVICING FEE RATE" means 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.
"SPECIAL SERVICING STANDBY FEE" means for each calendar month, as to
each Mortgage Loan (including Mortgage Loans relating to REO properties), the
portion or fraction of the Special Servicing Standby Fee Rate (determined using
the same interest accrual methodology that is applied with respect to the
Mortgage Rate for such Mortgage Loan for such month)
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multiplied by the Scheduled Principal Balance of each Mortgage Loan immediately
before the Due Date occurring in such month.
"SPECIAL SERVICING STANDBY FEE RATE" means 0.005% per annum.
"SPECIALLY SERVICED ASSET REPORT" means the report prepared by the
Special Servicer substantially with the information set forth in Exhibit O
attached hereto.
"SPECIALLY SERVICED MORTGAGE LOAN" means, as of any date of
determination, any Mortgage Loan with respect to which the Master Servicer has
notified the Special Servicer and the Trustee that a Servicing Transfer Event
has occurred (which notice shall be effective upon receipt) and the Special
Servicer has received all information, documents and records relating to such
Mortgage Loan as reasonably requested by the Special Servicer to enable it to
assume its duties with respect to such Mortgage Loan. A Specially Serviced
Mortgage Loan shall cease to be a Specially Serviced Mortgage Loan from and
after the date on which the Special Servicer notifies the Master Servicer and
the Trustee, in accordance with Section 8.1(b), that such Mortgage Loan has
become a Rehabilitated Mortgage Loan with respect to such Servicing Transfer
Event, unless and until the Master Servicer notifies the Special Servicer and
the Trustee, in accordance with Section 8.1(b) that another Servicing Transfer
Event with respect to such Mortgage Loan exists or occurs.
"STANDARD HAZARD INSURANCE POLICY" means a fire and casualty extended
coverage insurance policy in such amount and with such coverage as required by
this Agreement.
"SUB-SERVICER" shall have the meaning set forth in Section 8.4.
"SUB-SERVICING FEE" means with respect to each Mortgage Loan
(including Mortgage Loans relating to REO Properties) the monthly fee payable to
the applicable Sub-Servicer based on the per annum rate specified on the
Mortgage Loan Schedule.
"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.
"TAX MATTERS PERSON" means the person designated as the "tax matters
person" of the REMIC Pool pursuant to Treasury Regulation Section 1.860F-4(d)
and temporary Treasury Regulations Section 301.6231(a)(7)-1T.
"TERMINATION PRICE" shall have the meaning set forth in Section
10.1(b) herein.
"TITLE INSURANCE POLICY" means a title insurance policy maintained
with respect to a Mortgage Loan.
"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.
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"TRANSFEROR" means any Person who is disposing by Transfer any
Ownership Interest in a Certificate.
"TRUST" means the trust created pursuant to this Agreement, the assets
which consist of all the assets of REMIC I (including the Mortgage Loans, such
amounts as shall from time to time be held in the Certificate Account, the
Distribution Account, the Insurance Policies, any REO Properties and other items
referred to in Section 2.1(b) hereof), REMIC II and REMIC III.
"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 for each calendar month, as to each Mortgage Loan
(including Mortgage Loans relating to REO Properties), the portion of the
Trustee Fee Rate applicable to such month (determined using the same interest
accrual methodology that is applied with respect to the Mortgage Rate for such
Mortgage Loan for such month) multiplied by the Scheduled Principal Balance of
each Mortgage Loan immediately before the Due Date occurring in such month.
"TRUSTEE FEE RATE" means 0.0030% per annum.
"TRUSTEE MORTGAGE FILE" means the mortgage documents listed in the
definition of Mortgage File hereof pertaining to a particular Mortgage Loan and
any additional documents required to be added to the Mortgage File pursuant to
this Agreement.
"UNDERWRITER" means each of Morgan Stanley & Co. Incorporated, Bear
Sterns & Co., Inc. and Deutsche Morgan Grenfell, Inc. or their respective
successors in interest.
"UNITED STATES PERSON" means (i) any natural person resident in the
United States, (ii) any partnership or corporation organized or incorporated
under the laws of the United States, (iii) any estate of which an executor or
administrator is a U.S. Person (other than an estate governed by foreign law and
of which at least one executor or administrator is a non-U.S. Person who has
sole or shared investment discretion with respect to its assets), (iv) any trust
of which any trustee is a U.S. Person (other than a trust of which at least one
trustee is a non-U.S. Person and has sole or shared investment discretion with
respect to its assets), (v) any agency or branch of a foreign entity located in
the United States, (vi) any non-discretionary or similar account (other than an
estate or trust) held by a dealer or other fiduciary for the benefit or account
of a U.S. Person, (vii) any discretionary or similar account (other than an
estate or trust) held by a dealer or other fiduciary organized, incorporated or
(if an individual) resident in the United States (other than such an account
held for the benefit or account of a non-U.S. Person), (viii) any partnership or
corporation organized or incorporated under the laws of a foreign jurisdiction
and formed by a U.S. Person principally for the purpose of investing in
securities not registered under the 1933 Act (unless it is organized or
incorporated, and owned, by accredited investors within the meaning of Rule
501(A) under the 1933 Act who are not natural persons, estates or trusts);
provided, however, that the term "U.S. Person" shall not include (A) a branch
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or agency of a U.S. Person that is located and operating outside the United
States for valid business purposes as a locally regulated branch or agency
engaged in the banking or insurance business, (B) any employee benefit plan
established and administered in accordance with the law, customary practices and
documentation of a foreign country and (C) the international organizations set
forth in Section 902(o)(7) of Regulation S under the 1933 Act and any other
similar international organizations, and their agencies, affiliates and pension
plans.
"UNPAID INTEREST" means, on any Distribution Date with respect to any
Class of Interests or Certificates (other than the Residual Certificates), the
portion of Distributable Certificate Interest for such Class remaining unpaid as
of the close of business on the preceding Distribution Date, plus one month's
interest thereon at the applicable Pass-Through Rate.
"USAP" shall have the meaning set forth in Section 8.13.
"WELLS FARGO" has the meaning assigned in the Preliminary Statement
hereof.
"WELLS FARGO LOANS" means, collectively those Mortgage Loans sold to
the Depositor pursuant to Mortgage Loan Purchase Agreement I and shown on
Schedule II hereto.
"WEIGHTED AVERAGE REMIC I NET MORTGAGE RATE" means, with respect to
any Distribution Date, the weighted average of the REMIC I Net Mortgage Rates
for the REMIC I Regular Interests, weighted on the basis of their respective
Certificate Balances as of the close of business on the preceding Distribution
Date.
SECTION 1.2 CALCULATIONS RESPECTING MORTGAGE LOANS. Calculations
required to be made by the Trustee or the Paying Agent pursuant to this
Agreement with respect to any Mortgage Loan shall be made based upon current
information as to the terms of the Mortgage Loans and reports of payments
received from the Master Servicer on such Mortgage Loans and payments to be made
to the Trustee (or the Paying Agent) as supplied to the Trustee (or the Paying
Agent) by the Master Servicer. Neither the Trustee nor the Paying Agent shall be
required to recompute, verify or recalculate the information supplied to it by
the Master Servicer and may conclusively rely upon such information in making
such calculations. If, however, a Responsible Officer of the Trustee has actual
knowledge of an error in the calculations, the Trustee shall inform the Master
Servicer of such error.
SECTION 1.3 CALCULATIONS RESPECTING ACCRUED INTEREST. Accrued interest
on any Certificate shall be calculated based upon a 360-day year consisting of
twelve 30-day months and Pass-Through Rates shall be carried out to eight
decimal places, rounded if necessary. All dollar amounts calculated hereunder
shall be rounded to the nearest penny.
SECTION 1.4 INTERPRETATION.
(a) Whenever the Agreement refers to a Distribution Date and a
"related" Collection Period, Interest Accrual Period, Record Date, Due Date,
Report Date, Monthly Certificateholder Report, Special Servicer Remittance Date,
Master Servicer Remittance Date or Determination Date, such reference shall be
to the Collection Period, Interest Accrual Period, Record Date, Due Date, Report
Date, Special Servicer Remittance Date, Master Servicer
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Remittance Date or Determination Date, as applicable, immediately preceding such
Distribution Date.
(b) As used herein and in any certificate or other document made or
delivered pursuant hereto or thereto, accounting terms not defined in Section
1.1 shall have the respective meanings given to them under generally accepted
accounting principles or regulatory accounting principles, as applicable.
(c) 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.
(d) 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.
(e) 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, in,
to and under (i) the Mortgage Loans identified on the Mortgage Loan Schedule,
(ii) the Depositor's rights under each Mortgage Loan Purchase Agreement that are
permitted to be assigned pursuant to Sections 14 or 15 thereof as applicable,
(iii) the Initial Deposit and (iv) all other assets included or to be included
in REMIC I for the benefit of REMIC II and REMIC III. Such assignment includes
all interest and principal received or receivable on or with respect to the
Mortgage Loans and due after the CutOff Date. The transfer of the Mortgage Loans
and the related rights and property accomplished hereby is absolute and is
intended by the parties to constitute a sale. In connection with the initial
sale of the Certificates by the Depositor, the purchase price to be paid
includes a portion attributable to interest accruing on the Certificates from
the Cut-off Date.
(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
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thereby, on or before the Closing Date, the Mortgage Note for each Mortgage Loan
so assigned, endorsed to the Trustee as specified in clause (i) of the
definition of "Mortgage File." The Depositor hereby represents that each Seller
is required, pursuant to the applicable Mortgage Loan Purchase Agreement, to
deliver to the Trustee the remaining documents constituting the Mortgage File
for each Mortgage Loan within 30 days following the Closing Date. None of the
Trustee, any Custodian, the Master Servicer or the Special Servicer shall be
liable for any failure by either Seller or the Depositor to comply with the
document delivery requirements of the Mortgage Loan Purchase Agreements and this
Section 2.1(b).
(c) The Master Servicer shall, at the expense of the applicable Seller
of the related Mortgage Loan, as to each Mortgage Loan, promptly (and in any
event within 45 days following the receipt thereof) cause to be submitted for
recording or filing, 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 (iv), (vi) and (ix) 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; provided that in those instances where the public recording office
retains the original assignment of Mortgage or assignment of Assignment of
Leases the Master Servicer shall obtain therefrom at the expense of the related
Seller a certified copy of the recorded original. The Master Servicer shall
forward copies thereof to the Trustee and the Special Servicer. If any such
document or instrument is lost or returned unrecorded or unfiled, as the case
may be, because of a defect therein, the Master Servicer shall direct each
Seller pursuant to the applicable Mortgage Loan Purchase Agreement promptly to
prepare or cause to be prepared a substitute therefor or cure such defect, as
the case may be, and thereafter the Master Servicer shall upon receipt thereof
cause the same to be duly recorded or filed, as appropriate.
(d) All relevant servicing 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. The Depositor shall deliver or cause the
related Seller to deliver to the Special Servicer a copy of each Mortgage File
to the extent that (i) such copy has not previously been delivered to the
Special Servicer and (ii) the Special Servicer requests (in writing) such copy
within 180 days following the Closing Date. The Depositor shall deliver or cause
the related Seller to deliver such copy within a reasonable period following
such request by the Special Servicer.
(e) In connection with the Depositor's assignment pursuant to Section
2.1(a) above, the Depositor shall deliver to the Trustee on or before the
Closing Date a copy of a fully executed counterpart of each Mortgage Loan
Purchase Agreement, as in full force and effect on the Closing Date, which
Mortgage Loan Purchase Agreements shall contain the representations and
warranties made by the Sellers with respect to each related Mortgage Loan as of
the Closing Date as are set forth on Exhibits R-1, R-2 hereto and R-3 hereto.
(f) Concurrently herewith, the Depositor has acquired the MSMC Loans
from MSMC, the Wells Fargo Loans from Wells Fargo and the John Hancock Loans
from John Hancock. The Depositor will deliver the original Mortgage Notes (or
lost note affidavits with a
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the foregoing documents, the loan number and the name of the Mortgagor set forth
in the Mortgage Loan Schedule respecting such Mortgage Loan accurately reflects
the information contained in such documents, and (D) each Mortgage Note has been
endorsed as provided in clause (i) of the definition of Mortgage File, and (ii)
in the case of the Final Certification, as to each Mortgage Loan listed in the
Mortgage Loan Schedule, except as may be specified in the schedule of exceptions
to Mortgage File delivery attached thereto, to the effect that: (A) all
documents required to be included in the Mortgage File pursuant to this
Agreement 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 copies of the related Mortgage Notes, as
described in the definition of Mortgage File) relating to the Wells Fargo Loans
and the John Hancock Loans to the Trustee, with the Trustee, on behalf of the
Certificateholders, inserted in the endorsement in blank executed by Wells Fargo
or John Hancock, as the case may be, to effect the transfer to the Trustee of
such Mortgage Notes and all related deeds of trust, mortgages and other loan
documents. The Depositor will deliver the original Mortgage Notes relating to
the MSMC Loans to the Trustee, with the Trustee, on behalf of the
Certificateholders, inserted in the endorsement in blank executed by MSMC, to
effect the transfer to the Trustee of such Mortgage Notes and all related deeds
of trust, mortgages and other loan documents. To avoid the unnecessary expense
and administrative inconvenience associated with the execution and recording of
multiple assignment documents, Wells Fargo, MSMC and John Hancock, as
applicable, are required under the Mortgage Loan Purchase Agreements to deliver
Assignments of Mortgages and assignments of UCC financing statements naming the
Trustee, on behalf of the Certificateholders, as assignee. Notwithstanding the
fact that the assignments shall name the Trustee, on behalf of the
Certificateholders, as the assignee, the parties hereto acknowledge and agree
that for all purposes the Wells Fargo Loans shall be deemed to have been
transferred from Wells Fargo to the Depositor, the MSMC Loans shall be deemed to
have been transferred from MSMC to the Depositor, the John Hancock Loans shall
be deemed to have been transferred from John Hancock to the Depositor, and all
Mortgage Loans shall be deemed to have been transferred from the Depositor to
the Trustee on behalf of the Certificateholders.
SECTION 2.2 ACCEPTANCE BY TRUSTEE. The Trustee will hold (i) the
documents constituting a part of the Mortgage Files delivered to it, (ii) the
REMIC I Regular Interests and (iii) the REMIC II Regular Interests, in each
case, in trust for the use and benefit of all present and future
Certificateholders.
Upon execution and delivery of this Agreement in respect of the
Initial Certification, and within 75 days after the execution and delivery of
this Agreement in respect of the Final Certification, the Trustee shall examine
the Mortgage Files in its possession, and shall deliver to the Depositor, the
Master Servicer and the Special Servicer 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) (i) in the case of the
Initial Certification, as to each Mortgage Loan listed in the Mortgage Loan
Schedule, except as may be specified in the schedule of exceptions to Mortgage
File delivery attached thereto, to the effect that: (A) all documents specified
in clause (i) of the definition of "Mortgage File" are in its possession, (B)
such documents have been reviewed by it and have not been materially mutilated,
damaged, defaced, torn or otherwise physically altered, and such documents
relate to such Mortgage Loan, (C) based on its examination and only as to the
foregoing documents, the loan number and the name of the Mortgagor set forth in
the Mortgage Loan Schedule respecting such Mortgage Loan accurately reflects the
information contained in such documents, and (D) each Mortgage Note has been
endorsed as provided in clause (i) of the definition of Mortgage file, and (ii)
in the case of the Final Certification, as to each Mortgage Loan listed in the
Mortgage Loan Schedule, except as may be specified in the schedule of
exceptions to Mortgage File delivery attached thereto, to the effect that: (A)
all documents required to be included in the Mortgage File pursuant of this
Agreement 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
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the foregoing documents, the loan number, the street address of the Mortgaged
Property and the name of the borrower set forth in the Mortgage Loan Schedule
respecting such Mortgage Loan accurately reflects the information contained in
the documents in the Mortgage File and (D) each Mortgage Note has been endorsed
and each Assignment of Mortgage has been delivered as provided in clause (i) and
clause (iv), 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 360
days after the Cut-Off Date, the Trustee shall provide a confirmation of receipt
of recorded assignments of Mortgage to the Master Servicer, the Special Servicer
and each Seller, and if any recorded assignment of Mortgage has not been
received by the Trustee by such time, the Trustee shall provide information in
such confirmation on the status of missing assignments. 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.
If, in the course of such review, the Trustee finds any document
constituting a part of a Trustee Mortgage File which does not meet the
requirements of clauses (A) through (D) in the preceding paragraph, the Trustee
shall promptly notify the applicable Seller, the Master Servicer, the Special
Servicer, and the Depositor in writing and the Master Servicer shall, and the
Special Servicer may, request such Seller to correct or cure such defect in the
manner and within the period or periods set forth in the applicable Mortgage
Loan Purchase Agreement and absent such correction or cure, and, in the case of
a defect which results from a failure to meet one or more requirements of
clauses (A) through (C) in the preceding paragraph, such defect materially and
adversely affects the value of the related Mortgage Loan or the interest of the
Trustee in the related Mortgage Loan (in the good faith judgment of the Master
Servicer or the Trustee), or in any event in the case of a defect under (D), the
Master Servicer shall, and the Special Servicer may, request the applicable
Seller, at such Seller's election, to, and such Seller shall be required
promptly upon such request, either (i) substitute for the related Mortgage Loan,
without recourse, a Qualifying Substitute Mortgage Loan or Loans, which
substitution shall be accomplished in the manner and subject to the conditions
set forth in Section 2.3; or (ii) purchase such Mortgage Loan from the Trust at
the Purchase Price therefor in accordance with the related Mortgage Loan
Purchase Agreement. The Purchase Price for any such Mortgage Loan shall be paid
to the Master Servicer and deposited by the Master Servicer in the Certificate
Account. Upon receipt by the Trustee of written notification of deposit of the
Purchase Price or other amount required of the applicable Seller, signed by a
Servicing Officer of the Master Servicer (which notification shall include a
statement as to the accuracy of the calculation of the Purchase Price or other
required deposit), the Trustee shall release the related Trustee Mortgage File
to the applicable Seller and the Trustee and the Depositor shall execute and
deliver such instruments of transfer or assignment in the forms presented to it,
in each case without recourse, representation or warranty as shall be necessary
to vest in such Seller, or its designee, title (to the extent that such title
was transferred to the Depositor or the Trustee) to any Mortgage Loan released
pursuant hereto.
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The Trustee or its authorized agents shall retain possession and
custody of each Trustee 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 or documents
constituting a part of a Mortgage File has not been properly executed, is
missing, contains information that does not conform in any respect with the
corresponding information set forth in the Mortgage Loan Schedule, or does not
appear to be regular on its face (each, a "Document Defect"), or discovers or
receives notice of a breach of any representation or warranty relating to the
Mortgage Loans set forth in the related Mortgage Loan Purchase Agreement (a
"Breach"), such party shall give prompt written notice to the other parties
hereto and to each Rating Agency. Promptly upon becoming aware of any such
Document Defect or Breach, the Master Servicer shall, and the Special Servicer
may, request that the related Seller, not later than 90 days from such Seller's
receipt of the notice of such Document Defect or Breach, cure such Document
Defect or Breach, as the case may be, in all material respects or repurchase the
affected Mortgage Loan at the applicable Purchase Price in accordance with the
related Mortgage Loan Purchase Agreement; provided, however, that the related
Seller will be permitted to deliver a Qualifying Substitute Mortgage Loan within
such 90 day period and subject to the prior written consent of the Operating
Adviser, which consent shall not be unreasonably withheld; and provided,
further, that the Seller may substitute for such Mortgage Loan only until two
years after the start-up day for the REMICs.
As to any Qualifying Substitute Mortgage Loan or Loans, the Master
Servicer shall cause the related Seller to deliver to the Trustee for such
Qualifying Substitute Mortgage Loan or Loans, the Mortgage Note, the Mortgage,
the related assignment of the Mortgage, and such other documents and agreements
as are required by Section 2.1, with the Mortgage Note endorsed as required by
Section 2.1. 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 in the month of substitution shall not be
part of the Trust and will be retained by Master Servicer and remitted by the
Master Servicer to the related Seller on the next succeeding Distribution Date.
For the month of substitution, distributions to Certificateholders will include
the Scheduled Payment due on the related Deleted Mortgage Loan for such month
and thereafter the related Seller shall be entitled to retain all amounts
received in respect of such Deleted Mortgage Loan.
The Master Servicer shall amend or cause to be amended the Mortgage
Loan Schedule to reflect the removal of such Deleted Mortgage Loan and the
substitution of the Qualifying Substitute Mortgage Loan or Loans and upon such
amendment the Master Servicer shall deliver or cause to be delivered such
amended Mortgage Loan Schedule to the Trustee and the Special Servicer. Upon
such substitution, the Qualifying Substitute Mortgage Loan or Loans shall be
subject to the terms of this Agreement in all respects. Upon receipt of the
Trustee Mortgage File pertaining to any Qualifying Substitute Mortgage Loans,
the Trustee shall release the Trustee Mortgage File relating to such Deleted
Mortgage Loan to the related Seller, and the Trustee (and the Depositor, if
necessary) shall execute and deliver such instruments of transfer or
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assignment in the form presented to it, in each case without recourse,
representation or warranty, as shall be necessary to vest title (to the extent
that such title was transferred to the Trustee or the Depositor) in the related
Seller or its designee to any Deleted Mortgage Loan substituted for pursuant to
this Section 2.2.
In any month in which the related Seller substitutes one or more
Qualifying Substitute Mortgage Loans for one or more Deleted Mortgage Loans, the
Master Servicer will determine the amount (if any) by which the aggregate
principal balance of all such Qualified Substitute Mortgage Loans as of the date
of substitution is less than the aggregate principal balance of all such Deleted
Mortgage Loans (in each case after application of scheduled principal portion of
the monthly payments received in the month of substitution). The Depositor shall
cause the related Seller to deposit the amount of such shortage into the
Certificate Account in the month of substitution, without any reimbursement
thereof. In addition, the Depositor shall cause the related Seller to deposit
into the Certificate Account, together with such shortage, if any, an amount
equal to interest on the Deleted Mortgage Loans at a rate equal to the sum of
the applicable Mortgage Rate from the Due Date as to which interest was last
paid up to the Due Date next succeeding such substitution together with the
amount of unreimbursed Servicing Advances, amounts required to be paid to the
Special Servicer but remaining unpaid or unreimbursed, and interest on
unreimbursed Advances with respect to such Deleted Mortgage Loans at the Advance
Rate. The Depositor shall cause the related Seller, in the case of the Mortgage
Loans, to give notice in writing (accompanied by an Officer's Certificate as to
the calculation of such shortage) to the Trustee and the Master Servicer of such
event which notice shall be accompanied by an Officers' Certificate as to the
calculation of such shortfall.
If the affected Mortgage Loan is to be repurchased, the Master
Servicer shall designate the Certificate 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.
Notwithstanding the foregoing, the delivery of a commitment to issue a policy of
lender's title insurance in lieu of the delivery of the actual policy of
lender's title insurance shall not be considered a Document Defect with respect
to any Mortgage File if such actual policy of insurance is delivered to the
Trustee or a Custodian on its behalf not later than the 90th day following the
Closing Date.
(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 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. The Master Servicer shall, and is hereby authorized and empowered by
the Trustee to, prepare, execute and deliver in its own name, on behalf of the
Certificateholders and the Trustee or any of them, the endorsements and
assignments contemplated by this Section 2.3, and the Trustee shall execute and
deliver any powers of attorney necessary to permit the Master Servicer to do so.
The Master
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Servicer shall indemnify the Trustee for all costs, liabilities and expenses
(including attorneys' fees) incurred by the Trustee in connection with any
negligent or intentional misuse of any such powers of attorney by the Master
Servicer.
(c) The Mortgage Loan Purchase Agreements provide the sole remedies
available to the Certificateholders, or the Trustee on behalf of the
Certificateholders, respecting any Document Defect or Breach. The parties
hereunder understand that (i) Wells Fargo, as Seller under the Mortgage Loan
Purchase Agreement I, will be providing the remedies with respect to the Wells
Fargo Loans, (ii) John Hancock, as Seller under the Mortgage Loan Purchase
Agreement III, will be providing the remedies with respect to the John Hancock
Loans, and (iii) MSMC (or to the extent set forth in the Mortgage Loan Purchase
Agreement II, General American Life Insurance Company ("GAL")) will be providing
the remedies with respect to the MSMC Loans under the Mortgage Loan Purchase
Agreement II. Notwithstanding any provision herein to the contrary, to the
extent that, with respect to any Mortgage Loan, any rights or remedies in favor
of MSMC under the agreement between MSMC and GAL that is described in the
Mortgage Loan Purchase Agreement II were assigned by MSMC to the Depositor under
the Mortgage Loan Purchase Agreement II, references in Section 2.3(a) and
Section 2.3(b) to "Seller" shall be deemed, as to such Mortgage Loan, to be
references to GAL (except that such references to "Seller" shall refer to MSMC
to the extent (and only to such extent) that any amounts that MSMC would
otherwise be required to pay under Section 2.3(a) exceed any amounts required to
be paid by GAL under such agreement between MSMC and GAL).
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 (in its capacity as Trustee of the Trust) as of the
Closing Date that:
(i) The Depositor is a corporation duly organized, validly
existing and in good standing under the laws governing its creation and
existence and has full corporate power and authority to own its property,
to carry on its business as presently conducted, to enter into and perform
its obligations under this Agreement, and to create the trust pursuant
hereto;
(ii) The execution and delivery by the Depositor of this
Agreement have been duly authorized by all necessary corporate action on
the part of the Depositor; neither the execution and delivery of this
Agreement, nor the consummation of the transactions herein contemplated,
nor compliance with the provisions hereof, will conflict with or result in
a breach of, or constitute a default under, (i) any of the provisions of
any law, governmental rule, regulation, judgment, decree or order binding
on the Depositor or its properties; (ii) the certificate of incorporation
or bylaws of the Depositor; or (iii) 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 (i) the ability of the Depositor to
perform its obligations
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under this Agreement or (ii) 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 date hereof;
(iv) This Agreement has been duly executed and delivered by the
Depositor and, assuming due authorization, execution and delivery by the
Trustee, constitutes a valid and binding obligation of the Depositor
enforceable against it in accordance with its terms;
(v) There are no actions, suits or proceedings pending or, to the
best of the Depositor's knowledge, threatened or likely to be asserted
against or affecting the Depositor, before or by any court, administrative
agency, arbitrator or governmental body (A) with respect to any of the
transactions contemplated by this Agreement or (B) with respect to any
other matter which in the judgment of the Depositor will be determined
adversely to the Depositor and will, if determined adversely to the
Depositor, materially and adversely affect it or its business, assets,
operations or condition, financial or otherwise, or adversely affect its
ability to perform its obligations under this Agreement; and
(vi) Immediately prior to the consummation of the transactions
contemplated in this Agreement, the Depositor had good title to and was the
sole owner of each Mortgage Loan free and clear of any and all adverse
claims, charges or security interests (including liens arising under the
federal tax laws or the Employee Retirement Income Security Act of 1974, as
amended).
SECTION 2.5 CONVEYANCE OF INTERESTS. Concurrently with the execution
and delivery of this Agreement, the Depositor does hereby transfer, assign, set
over, deposit with and otherwise convey to the Trustee, without recourse, in
trust, all the right, title and interest of the Depositor in and to (i) the
REMIC I Regular Interests in exchange for the REMIC II Interests and (ii) the
REMIC II Regular Interests in exchange for the REMIC III Certificates.
ARTICLE III
THE CERTIFICATES
SECTION 3.1 THE CERTIFICATES.
(a) The Certificates shall be in substantially the forms set forth in
Exhibits A-1 through A-17 hereto, with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by this
Agreement or as may in the reasonable judgment of the Trustee or the Depositor
be necessary, appropriate or convenient to comply, or facilitate
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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 A Certificates will be issuable in denominations of
$5,000 initial Certificate Balance and in any whole dollar denomination in
excess thereof. The Class X-1 and Class X-2 Certificates and the Class B, Class
D, Class E, Class F, Class G, Class H, Class J, Class K and Class L Certificates
will be issuable in denominations of $50,000 initial Certificate Balance or
initial Notional Amount (as applicable) or in any whole dollar denomination in
excess thereof. The Class R-I, Class R-II and Class R-III Certificates will be
issued in minimum Percentage Interests of 10% and integral multiples of 10% in
excess thereof.
(c) Each Certificate shall, on original issue, be authenticated by the
Trustee or the Authenticating Agent upon the order of the Depositor. No
Certificate shall be entitled to any benefit under this Agreement, or be valid
for any purpose, unless there appears on such Certificate a certificate of
authentication substantially in the form provided for herein, executed by an
authorized officer of the Trustee or the Authenticating Agent, if any, by manual
signature, and such certification upon any Certificate shall be conclusive
evidence, and the only evidence, that such Certificate has been duly
authenticated and delivered hereunder. All Certificates shall be dated the date
of their authentication. At any time and from time to time after the execution
and delivery of this Agreement, the Depositor may deliver Certificates to the
Trustee for authentication and the Trustee or the Authenticating Agent shall
authenticate and deliver such Certificates as in this Agreement provided and not
otherwise. In the event that additional Certificates need to be prepared at any
time subsequent to the Closing Date, the Depositor shall prepare, or cause to be
prepared, deliver, or cause to be delivered, at the Depositor's expense, any
such additional Certificates. With respect to the Class A, Class X-1 and Class
X-2, Class B, Class C, Class D, Class E, Class F, Class G, Class H, Class J,
Class K and Class L Certificates, on the Closing Date the Trustee or the
Authenticating Agent upon the order of the Depositor shall authenticate
Book-Entry Certificates that are issued to a Clearing Agency or its nominee as
provided in Section 3.7 against payment of the purchase price thereof.
SECTION 3.2 REGISTRATION. The Trustee initially shall be 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
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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 and evidencing, in the aggregate, the
same aggregate initial Certificate Balance, initial 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 initial Certificate Balance, initial
Notional Amount or Percentage Interest, as the case may be, as the Certificate
surrendered, upon surrender of the Certificate to be exchanged at the Corporate
Trust Office (or New York Presenting Office, if any) duly endorsed or
accompanied by a written instrument of exchange duly executed by such Holder or
such Holder's duly authorized attorney in such form as is satisfactory to the
Certificate Registrar. Certificates delivered upon any such exchange will
evidence the same obligations, and will be entitled to the same rights and
privileges, as the Certificates surrendered. No service charge shall be made to
a Certificateholder for any exchange of Certificates, but the Certificate
Registrar may require payment of a sum sufficient to cover any tax or
governmental charge that may be imposed in connection with any exchange of
Certificates. Whenever any Certificates are so surrendered for exchange, the
Trustee shall execute and the Trustee or the Authenticating Agent shall
authenticate, date and deliver the Certificates which the Certificateholder
making the exchange is entitled to receive.
(c) No transfer, sale, pledge or other disposition of any
Non-Registered Certificate or interest therein shall be made unless that
transfer, sale, pledge or other disposition is exempt from the registration
and/or qualification requirements of the Securities Act and any applicable state
securities laws, or is otherwise made in accordance with the Securities Act and
such state securities laws. If a transfer of any Non-Registered Certificate held
as a Definitive Certificate is to be made without registration under the
Securities Act (other than in connection with the initial issuance of the
Certificates or a transfer of such Non-Registered Certificate by the Depositor
or one of its Affiliates), then the Certificate Registrar shall refuse to
register such transfer unless it receives (and upon receipt, may conclusively
rely upon) either: (i) a certificate from the Certificateholder desiring to
effect such transfer substantially in the form attached as
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Exhibit D-1 hereto and a certificate from such Certificateholder's prospective
Transferee substantially in the form attached either as Exhibit D-2A hereto or
as Exhibit D-2B hereto; or (ii) an Opinion of Counsel satisfactory to the
Trustee to the effect that such transfer shall be made without registration
under the Securities Act, together with the written certification(s) as to the
facts surrounding such transfer from the Certificateholder desiring to effect
such transfer and/or such Certificateholder's prospective Transferee on which
such Opinion of Counsel is based (such Opinion of Counsel shall not be an
expense of the Trust or of the Depositor, the Master Servicer, the Special
Servicer, the Trustee or the Certificate Registrar in their respective
capacities as such). If a transfer of any interest in a Non-Registered
Certificate that constitutes a Book-Entry Certificate is to be made without
registration under the Securities Act (other than in connection with the initial
issuance of the Certificates or a transfer of any interest in such
Non-Registered Certificate by the Depositor or any of its Affiliates), then the
Certificate Owner desiring to effect such transfer shall be required to obtain
either (i) a certificate from such Certificate Owner's prospective Transferee
substantially in the form attached as Exhibit D-3A hereto or as Exhibit D-3B
hereto, or (ii) an Opinion of Counsel to the effect that such transfer may be
made without registration under the Securities Act. None of the Depositor, the
Trustee, the Master Servicer or the Certificate Registrar is obligated to
register or qualify any Class of Non-Registered Certificates under the
Securities Act or any other securities law or to take any action not otherwise
required under this Agreement to permit the transfer of any qualification. Any
Certificateholder or Certificate Owner desiring to effect a transfer of
Non-Registered Certificates or interests therein shall, and does hereby agree
to, indemnify the Depositor, the Underwriter, the Trustee, the Master Servicer,
the Special Servicer and the Certificate Registrar against any liability that
may result if the transfer is not exempt from such registration or qualification
or is not made in accordance with such federal and state laws.
(d) No transfer of a Subordinate or Residual Certificate or any
interest therein shall be made (A) to any employee benefit plan or other
retirement arrangement, including individual retirement accounts and annuities,
Keogh plans and collective investment funds and separate accounts in which such
plans, accounts or arrangements are invested, including, without limitation,
insurance company general accounts, that is subject to ERISA or Section 4975 of
the Code (each, a "Plan"), or (B) to any Person who is directly or indirectly
purchasing such Certificate or interest therein on behalf of, as named fiduciary
of, as trustee of, or with "plan assets" of a Plan, unless: (i) in the case of a
Subordinate Certificate that constitutes a Book-Entry Certificate, the purchase
and holding of such Certificate or interest therein qualifies for the exemptive
relief available under Sections I and III of U.S. Department of Labor Prohibited
Transaction Class Exemption ("PTCE") 95-60; or (ii) in the case of a Subordinate
or Residual Certificate held as a Definitive Certificate, the prospective
Transferee provides the Certificate Registrar with a certification of facts and
an Opinion of Counsel which establish to the satisfaction of the Trustee that
such transfer will not constitute or result in a non-exempt prohibited
transaction under Section 406 of ERISA or Section 4975 of the Code or subject
the Depositor, the Trustee, the Fiscal Agent, the Master Servicer or the Special
Servicer to any obligation in addition to those undertaken in this Agreement.
Each Person who acquires any Subordinate or Residual Certificate or interest
therein (unless it shall have acquired such Certificate or interest therein from
the Depositor or an Affiliate thereof or unless it shall have delivered to the
Certificate Registrar the certification of facts and Opinion of Counsel referred
to in clause (ii) of the preceding sentence) shall be required to deliver to the
Certificate Registrar (or, in the case of an interest in a Subordinate
Certificate that constitutes a Book-Entry
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Certificate, to the Certificate Owner that is transferring such interest) a
certification to the effect that: (i) it is neither a Plan nor any Person who is
directly or indirectly purchasing such Certificate or interest therein on behalf
of, as named fiduciary of, as trustee of, or with "plan assets" of a Plan; or
(ii) that the purchase and holding of such Certificate or interest therein by
such person qualifies for the exemptive relief available under Sections I and
III of PTCE.
(e) (i) Each Person who has or who acquires any Ownership Interest in
a Residual Certificate shall be deemed by the acceptance or acquisition of such
Ownership Interest to have agreed to be bound by the following provisions and to
have irrevocably authorized the Trustee under clause (ii)(A) below to deliver
payments to a Person other than such Person and to have irrevocably authorized
the Trustee under clause (ii)(B) below to negotiate the terms of any mandatory
sale and to execute all instruments of Transfer and to do all other things
necessary in connection with any such sale. The rights of such person acquiring
any Ownership Interest in a Residual Certificate are expressly subject to the
following provisions:
(A) Each Person holding or acquiring any Ownership Interest in a
Residual Certificate shall be a Permitted Transferee and a United States
Person and shall promptly notify the Trustee of any change or impending
change in its status as a Permitted Transferee.
(B) In connection with any proposed Transfer of any Ownership
Interest in a Residual Certificate, the Trustee shall require delivery to
it, and no Transfer of any Residual Certificate shall be registered until
the Trustee receives, an affidavit and agreement substantially in the form
attached hereto as Exhibit E-1 (a "Transfer Affidavit and Agreement") from
the proposed Transferee, in form and substance satisfactory to the Trustee,
representing and warranting, among other things, that such Transferee is a
Permitted Transferee, that it is not acquiring its Ownership Interest in
the Residual Certificate that is the subject of the proposed Transfer as a
nominee, trustee or agent for any person that is not a Permitted
Transferee, that for so long as it retains its Ownership Interest in a
Residual Certificate, it will endeavor to remain a Permitted Transferee,
that it is a United States Person, and that it has reviewed the provisions
of this Section 3.3(e) and agrees to be bound by them.
(C) Notwithstanding the delivery of a Transfer Affidavit and
Agreement by a proposed Transferee under clause (B) above, if the Trustee
has actual knowledge that the proposed Transferee is not a Permitted
Transferee or is not a United States Person, no Transfer of an Ownership
Interest in a Residual Certificate to such proposed Transferee shall be
effected.
(D) Each person holding or acquiring an Ownership Interest in a
Residual Certificate shall agree (1) to require a Transfer Affidavit and
Agreement from any prospective Transferee to whom such Person attempts to
transfer its Ownership Interest in such Residual Certificate and (2) not to
transfer its Ownership Interest in such Residual Certificate unless it
provides to the Trustee a certificate substantially in the form attached
hereto as Exhibit E-2 stating that, among other things, it has no actual
knowledge that such prospective Transferee is not a Permitted Transferee or
is not a United States Person.
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(E) Each Person holding or acquiring an Ownership Interest in a
Residual Certificate that is a "pass-through interest holder" within the
meaning of temporary Treasury regulation Section 1.67-3T(a)(2)(i)(A) or is
holding an Ownership Interest in a Residual Certificate on behalf of a
"pass-through interest holder", by purchasing an Ownership Interest in such
Certificate, agrees to give the Trustee written notice of its status as
such immediately upon holding acquiring such Ownership Interest in a
Residual Certificate.
(ii)(A)If any purported Transferee shall become a Holder of a
Residual Certificate in violation of the provisions of this Section 3.3(e)
or if any Holder of a Residual Certificate shall lose its status as a
Permitted Transferee or a United States Person, then the last preceding
Holder of such Residual Certificate that was in compliance with the
provisions of this Section 3.3(e) shall be restored, to the extent
permitted by law, to all rights and obligations as Holder thereof
retroactive to the date of registration of such Transfer of such Residual
Certificate. None of the Trustee, the Fiscal Agent, the Master Servicer,
the Special Servicer or the Certificate Registrar shall be under any
liability to any Person for any registration of Transfer of a Residual
Certificate that is in fact not permitted by this Section 3.3(e) or for
making any payments due on such Certificate to the Holder thereof or for
taking any other action with respect to such Holder under the provisions of
this Agreement.
(B) If any purported Transferee shall become a Holder of a
Residual Certificate in violation of the restrictions in this Section
3.3(e), or if any Holder of a Residual Certificate shall lose its status as
a Permitted Transferee or a United States Person, and to the extent that
the retroactive restoration of the rights and obligations of the prior
Holder of such Residual Certificate as described in clause (ii)(A) above
shall be invalid, illegal or unenforceable, then the Trustee shall have the
right, without notice to the Holder or any prior Holder of such Residual
Certificate, but not the obligation, to sell such Residual Certificate to a
purchaser selected by the Trustee on such terms as the Trustee may choose.
Such noncomplying Holder shall promptly endorse and deliver such Residual
Certificate in accordance with the instructions of the Trustee. Such
purchaser may be the Trustee itself or any Affiliate of the Trustee. The
proceeds of such sale, net of the commissions (which may include
commissions payable to the Trustee or its Affiliates), expenses and taxes
due, if any, will be remitted by the Trustee to such noncomplying Holder.
The terms and conditions of any sale under this clause (ii)(B) shall be
determined in the sole discretion of the Trustee, and the Trustee shall not
be liable to any Person having an Ownership Interest in a Residual
Certificate as a result of its exercise of such discretion.
(iii) The Master Servicer, on behalf of the Trustee, shall make
available, upon written request from the Trustee, to the Internal Revenue
Service and those Persons specified by the REMIC Provisions, all
information necessary to compute any tax imposed (A) as a result of the
Transfer of an Ownership Interest in a Residual Certificate to any Person
who is not a Permitted Transferee, including the information described in
Treasury regulations sections 1.860D-1(b)(5) and 1.860E-2(a)(5) with
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respect to the "excess inclusions" of such Residual Certificate and (B) as
a result of any regulated investment company, real estate investment trust,
common trust fund, partnership, trust, estate or organization described in
Section 1381 of the Code that holds an Ownership Interest in a Residual
Certificate having as among its record holders at any time any Person which
is not a Permitted Transferee. The Person holding such Ownership Interest
shall be responsible for the reasonable compensation of the Master Servicer
and the Trustee for providing such information.
(iv) The provisions of this Section 3.3(e) set forth prior to
this subsection (iv) may be modified, added to or eliminated, provided that
there shall have been delivered to the Trustee, the Master Servicer and the
Depositor the following:
(A) written notification from each Rating Agency to the effect
that the modification of, addition to or elimination of such provisions
will not cause such Rating Agency to qualify, downgrade or withdraw its
then current rating of any Class of Certificates; and
(B) an Opinion of Counsel, in form and substance satisfactory to
the Trustee and the Depositor, to the effect that such modification of,
addition to or elimination of such provisions will not cause any of REMIC
I, REMIC II or REMIC III to (x) cease to qualify as a REMIC or (y) be
subject to an entity-level tax caused by the Transfer of any Residual
Certificate to a Person which is not a Permitted Transferee, or cause a
Person other than the prospective Transferee to be subject to a tax caused
by the Transfer of a Residual Certificate to a Person which is not a
Permitted Transferee.
(f) Neither the Master Servicer nor the Trustee shall have any
liability to the Trust arising from a transfer of any Certificate in reliance
upon a certification, ruling or Opinion of Counsel described in this Section
3.3; provided, however, that the Trustee shall not register the transfer of a
Residual Certificate if it has actual knowledge that the proposed transferee
does not meet the qualifications of a permitted Holder of a Residual Certificate
as set forth in Section 3.3(e). Neither the Trustee nor the Certificate
Registrar shall have any obligation or duty to monitor, determine or inquire as
to compliance with any restriction on transfer or exchange of Certificates or
any interest therein imposed under this Article III or under applicable law
other than to require delivery of the certifications and/or opinions described
in this Article III; provided, however, that the Trustee shall not register the
transfer of a Residual Certificate if it has actual knowledge that the proposed
transferee does not meet the qualifications of a permitted Holder of a Residual
Certificate as set forth in Section 3.3(e). The Trustee and the Certificate
Registrar shall have no liability for transfers (including without limitation
transfers made through the book-entry facilities of the Depository or between or
among Participants or Certificate Owners) made in violation of applicable
restrictions, provided that the Trustee and Certificate Registrar have satisfied
their respective duties expressly set forth in Sections 3.3(c), 3.3(d) and
3.3(e).
(g) All Certificates surrendered for transfer and exchange shall be
physically cancelled by the Certificate Registrar, and the Certificate Registrar
shall hold such cancelled Certificates in accordance with its standard
procedures.
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(h) The Certificate Registrar shall provide notice to the Master
Servicer, the Special Servicer and the Depositor of each transfer of a
Certificate and, upon written request, provide each such Person with an updated
copy of the Certificate Register within a reasonable period of time following
receipt of such request.
(i) Unless and until it is exchanged in whole for the individual
Certificates represented thereby, a Global Certificate representing all of the
Certificates of a Class may not be transferred, except as a whole by the
Depository to a nominee of the Depository or by a nominee of the Depository to
the Depository or another nominee of the Depository or by the Depository or any
such nominee to a successor Clearing Agency or a nominee of such successor
Clearing Agency, and no such transfer to any such other Person may be
registered; provided that this subsection (i) shall not prohibit any transfer of
a Certificate of a Class that is issued in exchange for a Global Certificate of
the same Class pursuant to Section 3.9 below. Nothing in this subsection (i)
shall prohibit or render ineffective any transfer of a beneficial interest in a
Global Certificate effected in accordance with the other provisions of this
Section 3.3.
SECTION 3.4 MUTILATED, DESTROYED, LOST OR STOLEN CERTIFICATES. If (A)
any mutilated Certificate is surrendered to the Trustee, or the Trustee receives
evidence to its satisfaction of the destruction, loss or theft of any
Certificate and (B) except in the case of a mutilated Certificate so
surrendered, there is delivered to the Trustee such security or indemnity as may
be required by it to save it harmless, then, in the absence of notice to the
Trustee that such Certificate has been acquired by a bona fide purchaser, the
Trustee shall execute, authenticate and deliver, in exchange for or in lieu of
any such mutilated, destroyed, lost or stolen Certificate, a new Certificate of
like tenor and interest in the Trust. In connection with the issuance of any new
Certificate under this Section 3.4, the Trustee may require the payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
relation thereto and any other expenses (including the fees and expenses of the
Trustee) connected therewith. Any replacement Certificate issued pursuant to
this Section 3.4 shall constitute complete and indefeasible evidence of
ownership in the Trust, as if originally issued, whether or not the lost, stolen
or destroyed Certificate shall be found at any time.
SECTION 3.5 PERSONS DEEMED OWNERS. Prior to presentation of a
Certificate for registration of transfer, the Master Servicer, the Special
Servicer, the Fiscal Agent, the Trustee, the Operating Adviser and any agent of
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 ACCESS TO LIST OF CERTIFICATEHOLDERS' NAMES AND ADDRESSES.
If three or more Certificateholders, a Certificateholder holding all the
Certificates of any Class of Certificates, the Master Servicer, the Special
Servicer, the Operating Adviser or the Depositor (A) request in writing from the
Certificate Registrar a list of the names and addresses of Certificateholders
and (B) in the case of a request by Certificateholders, state that such
Certificateholders desire to communicate with other Certificateholders with
respect to their rights
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under this Agreement or under the Certificates, then the Certificate Registrar
shall, within ten Business Days after the receipt of such request, afford such
Certificateholders, the Master Servicer, the Special Servicer, the Depositor, or
the Operating Adviser, as applicable, access during normal business hours to a
current list of the Certificateholders. The expense of providing any such
information requested by such Person shall be borne by the party requesting such
information and shall not be borne by the Certificate Registrar or the Trustee.
Every Certificateholder, by receiving and holding a Certificate, agrees that the
Certificate Registrar and the Trustee shall not be held accountable by reason of
the disclosure of any such information as to the list of the Certificateholders
hereunder, regardless of the source from which such information was derived.
SECTION 3.7 BOOK-ENTRY CERTIFICATES.
(a) Notwithstanding the foregoing, the Class A-1, Class A-2, Class
X-1, Class X-2, Class B, Class C, Class D, Class E, Class F, Class G, Class H,
Class J, Class K and Class L Certificates, upon original issuance, each shall be
issued in the form of one or more Certificates representing the Book-Entry
Certificates, 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 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
Certificates, except as provided in Section 3.9. Unless and until Definitive
Certificates have been issued to the Certificate Owners pursuant to Section 3.9:
(i) the provisions of this Section 3.7 shall be in full force and
effect with respect to each such Class;
(ii) the Depositor, the Master Servicer, the Paying Agent, the
Certificate Registrar and the Trustee may deal with the Clearing Agency for
all purposes (including the making of distributions on the Certificates) as
the authorized representative of the Certificate Owners;
(iii) to the extent that the provisions of this Section 3.7
conflict with any other provisions of this Agreement, the provisions of
this Section 3.7 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 and/or
the Participants. Pursuant to the Depository Agreement, unless and until
Certificates are issued pursuant to Section 3.9, the initial Clearing
Agency will make book-entry transfers among the Participants and receive
and transmit distributions of principal and interest on the related
Certificates to such Participants.
(b) For purposes of any provision of this Agreement requiring or
permitting actions with the consent of, or at the direction of, Holders of the
Certificates evidencing a specified percentage of the aggregate unpaid principal
amount of Certificates, such direction or
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consent may be given by the Clearing Agency at the direction of Certificate
Owners owning Certificates evidencing the requisite percentage of principal
amount of Certificates. The Clearing Agency may take conflicting actions with
respect to the Certificates to the extent that such actions are taken on behalf
of the Certificate Owners.
(c) The Certificates of each Class (other than the Residual
Certificates) initially sold in reliance on Rule 144A or to Institutional
Accredited Investors shall be represented by the Rule 144A-IAI Global
Certificate for such Class, which shall be deposited with the Trustee as
custodian for the Depository and registered in the name of Cede & Co. as nominee
of the Depository. The Certificates evidenced by any Rule 144A-IAI Global
Certificate shall be subject to certain restrictions on transfer as set forth in
Section 3.3 hereof and shall bear legend(s) regarding such restrictions
described herein.
(d) The Certificates of each Class (other than the Residual
Certificates) initially sold in offshore transactions in reliance on Regulation
S shall be represented by the Regulation S Temporary Global Certificate for such
Class, which shall be deposited with the Trustee as custodian for the Depository
and registered in the name of Cede & Co. as nominee of the Depository. Not
earlier than the Release Date, beneficial interests in any Regulation S
Temporary Global Certificate shall be exchangeable for beneficial interests in
the Regulation S Permanent Global Certificate for such Class. Beneficial
interests in any Regulation S Temporary Global Certificate may be held only
through Euroclear or CEDEL; provided, however, that such interests may be
exchanged for interests in the Rule 144A-IAI Global Certificate for such Class
in accordance with the certification requirements described in Section 3.7(f).
The Regulation S Permanent Global Certificates shall be deposited with the
Trustee as custodian for the Depository and registered in the name of Cede & Co.
as nominee of the Depository.
On or prior to the Release Date and on or prior to any Distribution
Date occurring prior to the Release Date, each Certificate Owner of a Regulation
S Temporary Global Certificate that holds a beneficial interest therein on the
Release Date or on any such Distribution Date, as the case may be, must deliver
to Euroclear or CEDEL (as applicable) a Regulation S Certificate; provided,
however, that any Certificate Owner that holds a beneficial interest in a
Regulation S Temporary Global Certificate on the Release Date or on any such
Distribution Date that has previously delivered a Regulation S Certificate to
Euroclear or CEDEL with respect to its interest therein does not need to deliver
any subsequent Regulation S Certificate (unless the certificate previously
delivered is no longer true as of such subsequent date, and such Certificate
Owner must promptly notify Euroclear or CEDEL, as applicable, thereof).
Euroclear or CEDEL, as applicable, shall be required to promptly deliver to the
Trustee a certificate substantially in the form of Exhibit I hereto to the
effect that it has received the requisite Regulation S Certificates for each
such Class, and no Certificate Owner (or transferee from any such Certificate
Owner) shall be entitled to receive an interest in the Regulation S Permanent
Global Certificate for such Class or any payment or principal or interest with
respect to its interest in such Regulation S Temporary Global Certificate prior
to the Trustee receiving such certification from Euroclear or CEDEL with respect
to the portion of the Regulation S Temporary Global Certificate owned by such
Certificate Owner (and, with respect to an interest in the applicable Regulation
S Permanent Global Certificate, prior to the Release Date). After the Release
Date, distributions due with respect to any beneficial interest in a Regulation
S Temporary Global Certificate shall not be made to the holders of such
beneficial interests unless exchange for a beneficial interest in the
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related Regulation S Permanent Global Certificate is improperly withheld or
refused. No interest in a Regulation S Global Certificates may be held by or
transferred to a U.S. Person (as defined in Regulation S) except for exchanges
for a beneficial interest in the Rule 144A-IAI Global Certificate for such Class
as described in Section 3.7(f).
(e) Except in the limited circumstances described below in Section
3.9, owners of beneficial interests in Global Certificates shall not be entitled
to receive physical delivery of Definitive Certificates. The Certificates are
not issuable in bearer form. Upon the issuance of each Global Certificate, the
Depository or its custodian shall credit, on its internal system, the respective
principal amount of the individual beneficial interests represented by such
Global Certificate to the accounts of persons who have accounts with such
Depository. Such accounts initially shall be designated by or on behalf of the
Placement Agents. Ownership of beneficial interests in a Global Certificate
shall be limited to Participants or Persons who hold interests directly or
indirectly through Participants. Ownership of beneficial interests in the Global
Certificates shall be shown on, and the transfer of that ownership shall be
effected only through, records maintained by the Depository or its nominee (with
respect to interests of Participants) and the records of Participants (with
respect to interests of Persons other than Participants).
So long as the Depository, or its nominee, is the registered holder of
a Global Certificate, the Depository or such nominee, as the case may be, shall
be considered the sole owner and holder of the Certificates represented by such
Global Certificate for all purposes under this Agreement and the Certificates,
including, without limitation, obtaining consents and waivers thereunder, and
the Trustee shall not be affected by any notice to the contrary. Except under
the circumstance described in Section 3.9, owners of beneficial interests in a
Global Certificate will not be entitled to have any portions of such Global
Certificate registered in their names, will not receive or be entitled to
receive physical delivery of Definitive Certificates in certificated form and
shall not be considered the owners or holders of the Global Certificate (or any
Certificates represented thereby) under this Agreement or the Certificates. In
addition, no Certificate Owner of an interest in a Global Certificate shall be
able to transfer that interest except in accordance with the Depository's
applicable procedures (in addition to those under this Agreement and, if
applicable, those of Euroclear and CEDEL).
(f) Any holder of an interest in a Regulation S Global Certificate
shall have the right, upon prior written notice to the Trustee, Euroclear or
CEDEL, as applicable, and the Depository, in the form of an Exchange
Certification (substantially in the form of Exhibit H attached hereto), to
exchange all or a portion of such interest (in authorized denominations as set
forth in Section 3.1(b)) for an equivalent interest in the Rule 144A-IAI Global
Certificate for such Class in connection with a transfer of its interest therein
to a transferee that is eligible to hold an interest in such Rule 144A-IAI
Global Certificate as described herein; provided, however, that no Exchange
Certification shall be required if any such exchange occurs after the Release
Date. Any holder of an interest in the Rule 144A-IAI Global Certificate shall
have the right, upon prior written notice to the Trustee, the Depository and
Euroclear or CEDEL, as applicable, in the form of an Exchange Certification, to
exchange all or a portion of such interest (in authorized denominations as set
forth in Section 3.1(b)) for an equivalent interest in the Regulation S Global
Certificate for such Class in connection with a transfer of its interest therein
to a transferee that is eligible to hold an interest in such Regulation S Global
Certificate as
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described herein; provided, however, that if such exchange occurs prior to the
Release Date, the transferee shall acquire an interest in a Regulation S
Temporary Global Certificate only and shall be subject to all of the
restrictions associated therewith described in Section 3.7(d). Following receipt
of any Exchange Certification or request for transfer, as applicable, by the
Trustee: (i) the Trustee shall endorse the schedule to any Global Certificate
representing the Certificate or Certificates being exchanged to reduce the
stated principal amount of such Global Certificate by the denominations of the
Certificate or Certificates for which such exchange is to be made, and (ii) the
Trustee shall endorse the schedule to any Global Certificate representing the
Certificate or Certificates for which such exchange is to be made to increase
the stated principal amount of such Global Certificate by the denominations of
the Certificate or Certificates being exchanged therefor. The form of the
Exchange Certification shall be available from the Trustee.
SECTION 3.8 NOTICES TO CLEARING AGENCY. Whenever notice or other
communication to the Certificateholders is required under this Agreement, unless
and until Definitive Certificates shall have been issued to the related
Certificateholders pursuant to Section 3.9, 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 3.9 DEFINITIVE CERTIFICATES.
(a) Definitive Certificates will be issued to the owners of beneficial
interests in a Global Certificate 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 depositary for such Global Certificate and a
qualifying successor depositary is not appointed by the Depositor within 90 days
thereof, (ii) the Trustee has instituted or caused to be instituted or has been
directed to institute any judicial proceeding in a court to enforce the rights
of the Certificateholders under this Agreement and under such Global Certificate
and the Trustee has been advised by counsel that in connection with such
proceeding it is necessary or advisable for the Trustee to obtain possession of
such Global Certificate, or (iii) after the occurrence of an Event of Default,
Certificate Owners representing a majority in aggregate outstanding Certificate
Balance of such Global Certificate advise the Depository through the
Participants in writing (and the Depository so advises the Depositor, the
Trustee and the Master Servicer in writing) that the continuation in global form
of the Certificates being evidenced by such Global Certificate is no longer in
their best interests; provided, that under no circumstances will Definitive
Certificates be issued to Certificate Owners of the Regulation S Temporary
Global Certificate. Upon notice of the occurrence of any of the events described
in the preceding sentence, the Trustee shall notify the Depository and request
the Depository to notify all Certificate Owners, through the applicable
Participants, 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 Global 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. Neither the Depositor, the Fiscal Agent nor the Trustee shall be
liable for any delay in delivery of such instructions and may conclusively rely
on, and shall be protected in relying on, such instructions. Upon the issuance
of Definitive Certificates, all references herein to obligations imposed upon or
to be performed by the Clearing Agency shall be deemed to be
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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.
SECTION 3.10 APPOINTMENT OF PAYING AGENT. The Trustee initially shall
be the Paying Agent for the purpose of making distributions to
Certificateholders hereunder. The Trustee may appoint another Person as Paying
Agent as provided herein. The Trustee shall cause such other Person appointed as
Paying Agent to execute and deliver to the Trustee an instrument in which such
Paying Agent shall agree with the Trustee that such Paying Agent will hold all
sums held by it for the payment to Certificateholders in an Eligible Account in
trust for the benefit of the Certificateholders entitled thereto until such sums
shall be paid to the Certificateholders. All funds remitted by the Trustee to
any such Paying Agent for the purpose of making distributions shall be paid to
Certificateholders on each Distribution Date and any amounts not so paid shall
be returned on such Distribution Date to the Trustee. If the Paying Agent is not
the Trustee, the Trustee shall remit to the Paying Agent on the Business Day
prior to each Distribution Date, by wire transfer in immediately available
funds, the funds to be distributed on such Distribution Date (to the extent the
Trustee has received such funds from the Master Servicer pursuant to Section
5.2). Any Paying Agent shall be either a bank or trust company or otherwise
authorized under law to exercise corporate trust powers and shall be rated at
least "BBB" by S&P and "BBB" by DCR, unless and to the extent Rating Agency
Confirmation is obtained. The Trustee shall remain obligated and liable to the
Certificateholders for the duties performed by the Paying Agent under this
Agreement as if the Trustee alone was acting as Paying Agent.
ARTICLE IV
ADVANCES
P&I Advances and Servicing Advances shall be made by the Master
Servicer, the Trustee and the Fiscal Agent, except to the extent that the Master
Servicer, the Trustee or the Fiscal Agent determines, as applicable, in
accordance with Section 4.4 below, that any such Advance would be a
Nonrecoverable Advance.
SECTION 4.1 P&I ADVANCES BY MASTER SERVICER.
(a) On or prior to the Advance Report Date, the Master Servicer shall
notify the Trustee if the P&I Advance Amount for such Distribution Date is
greater than zero, and the Master Servicer shall make a P&I Advance of such
amount no later than the Master Servicer Remittance Date. It is understood that
the obligation of the Master Servicer to make such P&I Advances is mandatory and
shall apply through any court appointed stay period or similar payment delay
resulting from any insolvency of the Mortgagor or related bankruptcy,
notwithstanding any other provision of this Agreement. Notwithstanding the
foregoing, the
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Master Servicer shall not be required to make such P&I Advance, if the Master
Servicer determines, in accordance with Section 4.4 below, that any such P&I
Advance would be a Nonrecoverable Advance. Such determination shall be
conclusive and binding on the Trustee and the Certificateholders. The Special
Servicer shall not be required to make P&I Advances under this Agreement.
(b) If the Master Servicer determines that there is a P&I Advance
Amount for a Distribution Date, the Master Servicer shall on the Master Servicer
Remittance Date either (A) deposit in the Certificate Account an amount equal to
the P&I Advance Amount or (B) utilize funds in the Certificate Account being
held for future distributions or withdrawals to make such Advance. Any funds
being held in the Certificate Account for future distribution or withdrawal and
so used shall be replaced by the Master Servicer from its own funds by deposit
in the Certificate Account on or before any future Master Servicer Remittance
Date to the extent that funds in the Certificate Account on such Master Servicer
Remittance Date shall be less than payments to the Trustee or other Persons
required to be made on such date.
SECTION 4.2 SERVICING ADVANCES. The Master Servicer, the Trustee and
the Fiscal Agent shall each make Servicing Advances to the extent provided in
this Agreement, except to the extent that the Master Servicer, the Trustee or
the Fiscal Agent determines, as applicable, in accordance with Section 4.4
below, that any such Advance would be a Nonrecoverable Advance. Such
determination shall be conclusive and binding on the Trustee and the
Certificateholders. The Special Servicer shall not be required to make Servicing
Advances under this Agreement.
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 the Master Servicer Remittance 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 on such Distribution Date.
(b) To the extent that the Trustee fails to make a P&I Advance
required to be made by the Trustee hereunder on the 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 on each such
Distribution Date.
(c) To the extent that the Master Servicer fails to make a Servicing
Advance by the date such Servicing Advance is required to be made (other than a
Servicing Advance that the Master Servicer determines is a Nonrecoverable
Advance), and a Responsible Officer of the Trustee receives notice thereof, the
Trustee shall make such Servicing Advance promptly, but in any event, not later
than five Business Days after notice thereof, unless the Trustee determines that
such Servicing Advance, if made, would be a Nonrecoverable Advance.
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(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 has received notice 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. If the Master Servicer
determines at any time, in its sole discretion, exercised in good faith, that
any Advance previously made or proposed Advance, if made, would constitute a
Nonrecoverable Advance, such determination shall be evidenced by an Officer's
Certificate delivered to the Trustee, and the Special Servicer by the Business
Day prior to the Distribution Date. Such Officer's Certificates shall set forth
the reasons for such determination of nonrecoverability, together with, to the
extent such information, report or document is in the Master Servicer's
possession, any related financial information such as related income and expense
statements, rent rolls, occupancy status, property inspections and any
appraisals performed in accordance with MAI standards within the last 12 months
on the Mortgaged Property, and, if such reports are used by the Master Servicer
to determine that any P&I Advance or Servicing Advance, as applicable, would be
a Nonrecoverable Advance, any engineers' reports, environmental surveys,
internal final valuations or other information relevant thereto which support
such determination. If the Trustee or the Fiscal Agent, as applicable,
determines at any time that any portion of an Advance previously made or a
portion of a proposed Advance that the Trustee or the Fiscal Agent is required
to make pursuant to this Agreement, if made, would constitute a Nonrecoverable
Advance, such determination shall be evidenced by an Officer's Certificate of a
Responsible Officer of the Trustee or an officer of the Fiscal Agent delivered
to the Depositor, the Master Servicer and the Special Servicer similar to the
Officer's Certificate of the Master Servicer described in the prior sentence.
Neither the Trustee nor the Fiscal Agent shall be required to make an Advance
that the Master Servicer has previously determined to be a Nonrecoverable
Advance. Notwithstanding any other provision of this Agreement, neither the
Master Servicer, the Trustee, nor the Fiscal Agent, as applicable, shall be
obligated to, nor shall it, make any Advance or make any payment that is
designated in this Agreement to be an Advance, if it determines in its good
faith judgment that such Advance or such payment (including interest accrued
thereon at the Advance Rate) would be a Nonrecoverable Advance. The Master
Servicer's determination in accordance with the above provisions shall be
conclusive and binding on the Trustee, the Fiscal Agent and the
Certificateholders.
SECTION 4.5 INTEREST ON ADVANCES; CALCULATION OF OUTSTANDING ADVANCES
WITH RESPECT TO A MORTGAGE LOAN. Any unreimbursed Advance funded from the Master
Servicer's, the Trustee's or the Fiscal Agent's own funds shall accrue interest
on a daily basis, at a per annum rate equal to the Advance Rate, from the date
such Advance was made until the date on which such Advance has been reimbursed.
For purposes of determining whether a P&I Advance is outstanding, amounts
collected with respect to a particular Mortgage Loan or REO
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Property and treated as collections of principal or interest shall be applied
first to reimburse the earliest P&I Advance and then each succeeding P&I Advance
to the extent not inconsistent with Section 4.6. Except with respect to
Specially Serviced Mortgage Loans, the Master Servicer shall attempt to collect
(but shall have no obligation to collect) Late Fees in an amount sufficient to
pay Advance Interest from the Mortgagor. The Master Servicer shall be entitled
to retain Late Fees paid by any Mortgagor with respect to any Mortgage Loan
(other than a Specially Serviced Mortgage Loan, as to which the Special Servicer
shall retain Late Fees) as additional servicing compensation to the extent such
Late Fees exceed Advance Interest. The Special Servicer, with respect to any
Specially Serviced Mortgage Loan, shall (i) pay from any related Late Fees
outstanding and unpaid Advance Interest to the Master Servicer, the Trustee or
the Fiscal Agent, as applicable, and (ii) retain any remaining portion of such
Late Fees as additional Special Servicer Compensation.
SECTION 4.6 REIMBURSEMENT OF ADVANCES AND ADVANCE INTEREST.
(a) Advances made with respect to each Mortgage Loan or Specially
Serviced Mortgage Loan or REO Property (including Advances later determined to
be Nonrecoverable Advances) shall be reimbursed to the extent of the amounts
identified to be applied therefor in Section 5.2. The aggregate of the amounts
available to repay Advances pursuant to Sections 5.2 collected in any Collection
Period with respect to Mortgage Loans or Specially Serviced Mortgage Loans or
REO Property shall be an "Available Advance Reimbursement Amount."
(b) To the extent that Advances have been made on Mortgage Loans,
Specially Serviced Mortgage Loans or REO Property, the Available Advance
Reimbursement Amount with respect to any Determination Date shall be applied to
reimburse (i) the Fiscal Agent for any Advances outstanding to the Fiscal Agent
with respect to any of such Mortgage Loans or Specially Serviced Mortgage Loans
or REO Property, plus any Advance Interest owed to the Fiscal Agent with respect
to such Advances and then (ii) the Trustee for any Advances outstanding to the
Trustee with respect to any of such Mortgage Loans or Specially Serviced
Mortgage Loans or REO Property, plus any Advance Interest owed to the Trustee
with respect to such Advances and then (iii) the Master Servicer for any
Advances outstanding to the Master Servicer with respect to any of such Mortgage
Loans, plus any Advance Interest owed to the Master Servicer with respect to
such Advances. To the extent that any Advance Interest payable to the Master
Servicer, the Trustee or the Fiscal Agent with respect to a Specially Serviced
Mortgage Loan or REO Property cannot be recovered from the related Mortgagor,
the amount of such Advance Interest shall be treated as a Servicing Advance and
shall be payable to the Fiscal Agent, the Trustee or the Master Servicer, as the
case may be, from amounts on deposit in the Certificate Account or the
Distribution Account pursuant to Section 5.2(a) or Section 5.3(b)(ii). The
Master Servicer's, the Trustee's and the Fiscal Agent's right of reimbursement
under this Agreement for Advances shall be prior to the rights of the
Certificateholders to receive any amounts recovered with respect to such
Mortgage Loans or REO Properties.
(c) Amounts applied to reimburse Advances shall first be applied to
reduce Advance Interest thereon and then to reduce the outstanding amount of
such Advances.
(d) To the extent that the Special Servicer incurs out-of-pocket
expenses, in accordance with the Servicing Standard, in connection with
servicing Specially Serviced
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Mortgage Loans, the Master Servicer shall reimburse the Special Servicer for
such expenditures within 30 days after receiving an invoice and a report from
the Special Servicer, subject to Section 4.4. With respect to each Collection
Period, the Special Servicer shall deliver such invoice and report to the Master
Servicer by the following Determination Date. All such amounts reimbursed by the
Master Servicer shall be a Servicing Advance. In the event that the Master
Servicer defaults under its obligation to reimburse the Special Servicer
hereunder or the Master Servicer determines that such Servicing Advance, if
made, would be a Nonrecoverable Advance, the Special Servicer shall notify the
Master Servicer in writing of such nonpayment and the amount payable to the
Special Servicer and shall be entitled to receive reimbursement from the Trust
as an Additional Trust Expense. The Master Servicer and the Trustee shall have
no obligation to verify the amount payable to the Special Servicer pursuant to
this Section 4.6(d) and circumstances surrounding the notice delivered by the
Special Servicer pursuant to this Section 4.6(d).
SECTION 4.7 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,
marshalling of assets and liabilities or similar proceedings, or for the
winding-up or liquidation of its affairs, shall have been entered against
the Fiscal Agent and such decree or order shall have remained in force
undischarged or unstayed for a period of 60 days; or
(iii) The Fiscal Agent shall consent to the appointment of a
conservator, receiver, liquidator, trustee or similar official in any
bankruptcy, insolvency, readjustment of debt, marshalling of assets and
liabilities or similar proceedings or relating to the Fiscal Agent 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) Any 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" by DCR or "AA" by S&P.
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SECTION 4.8 PROCEDURE UPON TERMINATION EVENT.
(a) On the date specified in a written notice of termination given to
the Fiscal Agent pursuant to Section 7.6(c), all authority, power and rights of
the Fiscal Agent under this Agreement, whether with respect to the Mortgage
Loans or otherwise, shall terminate and a successor Fiscal Agent, if necessary,
shall be appointed by the Trustee, with the consent of the Depositor; provided
that Rating Agency Confirmation is obtained with respect to the appointment of
such successor Fiscal Agent, and in no event shall the termination of the Fiscal
Agent be effective until Rating Agency Confirmation shall have been obtained
with respect to a successor fiscal agent. The Fiscal Agent agrees to cooperate
with the Trustee in effecting the termination of the Fiscal Agent's
responsibilities and rights hereunder as Fiscal Agent.
(b) Notwithstanding the termination of its activities as Fiscal Agent,
the terminated Fiscal Agent shall continue to be entitled to reimbursement to
the extent provided in Section 4.6 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 Certificate Account.
SECTION 4.9 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 4.9 have been completed and such action is permitted
by and complies with the terms of this Section 4.9.
SECTION 4.10 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, and using reasonable
business judgment pursuant to this Agreement, or for errors in judgment;
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
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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. In such event, all legal
expenses and costs of such action shall be expenses and costs of the Trust, and
the Fiscal Agent shall be entitled to be reimbursed therefor as Servicing
Advances as provided by this Agreement. The provisions of this Section 4.10
shall survive the resignation or removal of the Fiscal Agent and the termination
of this Agreement.
SECTION 4.11 INDEMNIFICATION OF FISCAL AGENT. The Fiscal Agent and
each of its directors, officers, employees, agents and Controlling Persons 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 other than any loss, liability or
expense incurred by reason of the Fiscal Agent's willful misfeasance, bad faith
or negligence in the performance of duties hereunder. The Depositor shall
indemnify and hold harmless the Fiscal Agent, its directors, officers,
employees, agents and Controlling Persons from and against any loss, claim,
damage or liability, joint or several, and any action in respect thereof, to
which the Fiscal Agent, its directors, officers, employees, agents or
Controlling Person may become subject under the 1933 Act, insofar as such loss,
claim, damage, liability or action arises out of, or is based upon any untrue
statement or alleged untrue statement of a material fact contained in the
Private Placement Memorandum or in the Prospectus Supplement or arises out of,
or is based upon the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein
in light of the circumstances under which they were made, not misleading and
shall reimburse the Fiscal Agent, its directors, officers, employees, agents or
Controlling Person for any legal and other expenses reasonably incurred by the
Fiscal Agent or any such director, officer, employee, agent or Controlling
Person in investigating or defending or preparing to defend against any such
loss, claim, damage, liability or action. The Fiscal Agent shall immediately
notify the Depositor and the Trustee if a claim is made by a third party with
respect to this Section 4.11 entitling the Fiscal Agent, its directors,
officers, employees, agents or Controlling Person to indemnification hereunder,
whereupon the Depositor shall assume the defense of any such claim (with counsel
reasonably satisfactory to the Fiscal Agent) and pay all expenses in connection
therewith, including counsel fees, and promptly pay, discharge and satisfy any
judgment or decree which may be entered against it or them in respect of such
claim. Any failure to so notify the Depositor shall not affect any rights the
Fiscal Agent, its directors, officers, employees, agents or Controlling Person
may have to indemnification under this Section 4.11, unless the Depositor's
defense of such claim is materially prejudiced thereby. The indemnification
provided herein shall survive the termination of this Agreement and the
resignation or removal of the Fiscal Agent.
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ARTICLE V
ADMINISTRATION OF THE TRUST
SECTION 5.1 COLLECTIONS.
(a) On or prior to the Closing Date, the Master Servicer shall open
and shall thereafter maintain a separate account or accounts, which accounts
must be Eligible Accounts, in the name of "Wells Fargo Bank, National
Association, 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-WF1" (the "Certificate Account").
(b) On or prior to the date the Master Servicer shall first deposit
funds in a Certificate Account, the Master Servicer shall give to the Trustee
prior written notice of the name and address of the depository institution at
which the Certificate Account is maintained and the account number of the
Certificate Account. The Master Servicer shall take such actions as are
necessary to cause the depository institution holding the Certificate 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 Certificate 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 by it
(including amounts remitted to the Master Servicer by the Special Servicer from
an REO Account pursuant to Section 9.14), 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 Depositor (provided that the Master Servicer may retain amounts
otherwise payable to the Master Servicer as provided in Section 5.2(a) rather
than deposit them into the Certificate Account):
(A) Principal: all payments on account of principal, including
Principal Prepayments, the principal component of Scheduled Payments,
and any Late Collections in respect thereof on the Mortgage Loans;
(B) Interest: subject to subsection (d) hereof, all payments on
account of interest (minus any portion of any such payment that is
allocable to the period prior to the Cut-Off Date which shall be
remitted to the Depositor);
(C) Liquidation Proceeds: all Liquidation Proceeds with respect to the
Mortgage Loans;
(D) Insurance Proceeds: all insurance proceeds other than proceeds to
be applied to the restoration or repair of the property subject to the
related Mortgage or released to the related Mortgagor in accordance
with the Servicing Standard, which proceeds shall be deposited by the
Master Servicer into an Escrow Account and not deposited in the
Certificate Account;
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(E) Condemnation Proceeds: all condemnation proceeds other than
proceeds to be applied to the restoration or repair of the property
subject to the related Mortgage or released to the related Mortgagor
in accordance with the Servicing Standard, which proceeds shall be
deposited by the Master Servicer into an Escrow Account and not
deposited in the Certificate Account;
(F) REO Income: all REO Income received from the Special Servicer;
(G) Investment Losses: any amounts required to be deposited by the
Master Servicer pursuant to Section 5.1(d) in connection with losses
realized on Eligible Investments with respect to funds held in the
Certificate Account;
(H) Advances: all P&I Advances unless made directly to the
Distribution Account; and
(I) Other: all other amounts, including Prepayment Premiums, required
to deposited in the Certificate Account pursuant to this Agreement,
including Purchase Proceeds of any Mortgage Loans repurchased by a
Seller or substitution shortfall amounts (as described in the fourth
paragraph of Section 2.3(a)) paid by a Seller in connection with the
substitution of any Qualifying Substitute Mortgage Loans.
Remittances from any REO Account to the Master Servicer for deposit in
the Certificate Account shall be made by the Special Servicer no later than the
Special Servicer Remittance Date.
(d) Funds in the Certificate Account may be invested and, if invested,
shall be invested by, and at the risk of, the Master Servicer in Eligible
Investments selected by the Master Servicer which shall mature, unless payable
on demand, not later than the Business Day immediately preceding the next Master
Servicer Remittance Date, and any such Eligible Investment shall not be sold or
disposed of prior to its maturity unless payable on demand. All such Eligible
Investments shall be made in the name of "LaSalle National Bank, as Trustee for
the Holders of the Morgan Stanley Capital I Inc., Commercial Mortgage
Pass-Through Certificates, Series 1998-WF1." 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 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) deposited in
the Certificate Account out of its own funds immediately as realized. If the
Master Servicer deposits in any Certificate Account any amount not required to
be deposited therein, it may at any time withdraw such amount from the
Certificate Account, any provision herein to the contrary notwithstanding.
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(e) 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 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 Certificate Account an amount equal to all amounts due
under any such Eligible Investment (net of anticipated income or earnings
thereon that would have been payable to the Master Servicer as additional
servicing compensation) the Master Servicer shall have the sole right to enforce
such payment or performance, and the Trustee shall deliver to the Master
Servicer the certificate or other instrument evidencing such investment together
with any necessary document of transfer.
(f) Certain of the Mortgage Loans may provide for payment by the
Mortgagor to the Master Servicer of amounts to be used for payment of Escrow
Amounts for the account of the Mortgagor. The Master Servicer shall deal with
these amounts in accordance with the Servicing Standard and the terms of the
related Mortgage Loans.
SECTION 5.2 APPLICATION OF FUNDS IN THE CERTIFICATE ACCOUNT.
(a) The Master Servicer shall, from time to time, make withdrawals
from the Certificate Account and remit them by wire transfer on the related
Master Servicer Remittance Date in immediately available funds to the account
specified in this Section or otherwise (w) to such account as it shall determine
from time to time of amounts payable to the Master Servicer from the Certificate
Account pursuant to clauses (i), (ii), (iii), (iv), (vi), (viii) and (ix) below;
(x) to the account specified in writing by the Trustee from time to time of
amounts payable to the Trustee from the Certificate Account pursuant to clauses
(ii), (iii), (v) and (vi) below, (y) to the account specified in writing by the
Fiscal Agent from time to time of amounts payable to the Fiscal Agent from the
Certificate Account pursuant to clauses (ii), (iii) and (vi) below; and (z) to
the Special Servicer from time to time of amounts payable to the Special
Servicer from such Certificate Account pursuant to clauses (i), (iv), (v), (vi)
and (vii) below of the following amounts, from the amounts specified for the
following purposes:
(i) Fees: the Master Servicer shall pay (A) to itself Late Fees (in
excess of Advance Interest) relating to Mortgage Loans which are not
Specially Serviced Mortgage Loans, Modification Fees relating to
Mortgage Loans which are not Specially Serviced Mortgage Loans as
provided in Section 8.18, 60% of any assumption fees payable under
Section 8.7, 100% of any extension fees payable under Section 8.10 or
other fees payable to the Master Servicer hereunder and (B) directly
to the Special Servicer, 40% of any assumption fees as provided in
Section 8.7(a), 100% of any assumption fees as provided in Section
8.7(b), all assumption fees relating to Specially Serviced Mortgage
Loans and Late Fees (in excess of Advance Interest which the Master
Servicer shall retain), Modification Fees and other fees collected on
Specially Serviced Mortgage Loans, in each case from funds paid by the
applicable Mortgagor to the extent provided for herein;
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(ii) Servicing Advances (including amounts later determined to be
Nonrecoverable Advances): to apply, pursuant to Section 4.6, (x) prior
to a Final Recovery Determination or determination in accordance with
Section 4.4 that any Advance is a Nonrecoverable Advance, payments
made by the Mortgagor of the amounts to which a Servicing Advance
relates or from REO Income from the related REO Property or from
Liquidation Proceeds, Condemnation Proceeds, Insurance Proceeds or
Purchase Proceeds or (y) after a Final Recovery Determination or
determination that any Advance is a Nonrecoverable Advance, any funds
on deposit in the Certificate Account (regardless of whether such
amount was recovered from the applicable Mortgage Loan or REO
Property), to reimburse the Fiscal Agent, the Trustee and itself, in
that order, as provided in, and subject to, Article IV hereof, for any
Servicing Advances (and Advance Interest thereon) made with respect to
a Mortgage Loan or REO Property and not previously reimbursed;
(iii) P&I Advances (including amounts later to be determined to be
Nonrecoverable Advances): to apply pursuant to Section 4.6, (x) prior
to a Final Recovery Determination or determination that any Advance is
a Nonrecoverable Advance, payments made by the Mortgagor of the
amounts to which a P&I Advance relates, or REO Income from the related
REO Property or from Liquidation Proceeds, Condemnation Proceeds,
Insurance Proceeds or Purchase Proceeds or (y) after a Final Recovery
Determination or determination in accordance with Section 4.4 that any
Advance is a Nonrecoverable Advance, for any Mortgage Loan, any funds
on deposit in the Certificate Account (regardless of whether such
amount was recovered from the applicable Mortgage Loan or REO
Property), to reimburse the Fiscal Agent, the Trustee and itself, in
that order, in accordance with Article IV hereof, for any P&I Advances
(and Advance Interest thereon) previously made by it with respect to
the related Mortgage Loan or REO Property and not previously
reimbursed;
(iv) Servicing Fee and Special Servicer Compensation: to pay to itself
the Servicing Fee (to the extent not previously retained by the Master
Servicer), to pay to the Special Servicer the Special Servicing
Standby Fee and to pay the Special Servicer the Special Servicing Fee;
(v) Trustee Fee: to pay to the Distribution Account for withdrawal by
the Trustee the Trustee's Fee;
(vi) Expenses of Trust: to pay to the Person entitled thereto any
amounts specified herein to be Additional Trust Expenses (at the time
set forth herein or in the definition thereof), the payment of which
is not more specifically provided for in this Agreement; provided that
the Depositor shall not be entitled to receive reimbursement for
performing its duties under this Agreement;
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(vii) Liquidation Fees: upon the occurrence of a Final Recovery
Determination to pay to the Special Servicer from the Certificate
Account, the amount certified by the Special Servicer equal to the
Liquidation Fee, to the extent provided in Section 9.11 hereof;
(viii) Investment Income: to pay to itself income and gain realized on
the investment of funds deposited in such Certificate Account relating
to the Trust;
(ix) Prepayment Interest Excesses: to pay the amount of the aggregate
Prepayment Interest Excesses to the Master Servicer (to the extent not
applied to Compensating Interest);
(x) Correction of Errors: to withdraw funds deposited in the
Certificate Account in error;
(xi) Distribution Amount: to make payment on each Master Servicer
Remittance Date to the Distribution Account of the remaining amounts
in the Certificate Account other than amounts held for payment in
future periods or pursuant to clause (xii) below; and
(xii) Clear and Terminate: to clear and terminate the Certificate
Account pursuant to Section 8.29.
The Master Servicer shall keep and maintain a separate accounting for
each Mortgage Loan for the purpose of justifying any withdrawal from the
Certificate Account.
(b) Scheduled Payments due in a Collection Period succeeding the
Collection Period relating to such Master Servicer Remittance Date, Prepayments
received after the related Collection Period, or other amounts not distributable
on the related Distribution Date, shall be held in the Certificate Account and
shall be distributed on the Master Servicer Remittance Date or Dates to which
such succeeding Collection Period or Periods relate.
SECTION 5.3 DISTRIBUTION ACCOUNT.
(a) The Trustee, or the Paying Agent, on behalf of the Trustee, shall
establish, on or prior to the Closing Date, and maintain in the name of the
Trustee, an account (the "Distribution Account"), 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, titled: "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-WF1, Distribution Account." The
Distribution Account shall be an Eligible Account. 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 including,
without limitation, other monies of the Trustee or the Paying Agent, as
applicable, held under this Agreement.
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(b) The Trustee or the Paying Agent, as applicable, shall deposit into
the Distribution Account on the Business Day received all moneys remitted by the
Master Servicer pursuant to this Agreement, including P&I Advances made by the
Master Servicer. On any Master Servicer Remittance Date, the Master Servicer
shall have no duty to remit to the Distribution Account any amounts other than
amounts held in the Certificate Account and collected during the related
Collection Period as provided in clauses (v) and (xi) of Section 5.2 and the P&I
Advance Amount. The Trustee or the Paying Agent, as applicable, 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;
(ii) to pay any amounts payable to the Master Servicer, the
Special Servicer, the Fiscal Agent and the Trustee (including the Trustee's
Fee), or other expenses or other amounts permitted to be paid hereunder and
not previously paid to such Persons pursuant to Section 5.2;
(iii) to make distributions to the Certificateholders pursuant to
Section 6.4; and
(iv) to clear and terminate the Distribution Account pursuant to
Section 10.3.
SECTION 5.4 TRUSTEE REPORTS.
(a) Based on (and to the extent of the information contained in) the
Master Servicer Remittance Report provided to the Trustee by the Master Servicer
(no later than the Report Date), on each Distribution Date, the Trustee shall
deliver or cause to be delivered by first class mail (or such other medium as
the Depositor shall reasonably request, the incremental cost of which shall be
paid in advance by the recipient thereof), to each Certificateholder, the Rating
Agencies, the Master Servicer, the Special Servicer, each Placement Agent, each
Underwriter, the Depositor and anyone the Depositor, either Placement Agent or
any Underwriter reasonably designates (i) a Monthly Certificateholders Report
(substantially in the form of Exhibit M) and (ii) a report containing
information regarding the Mortgage Loans as of the end of the related Collection
Period, which report shall contain substantially the categories of information
regarding the Mortgage Loans set forth in Appendix I to the Prospectus
Supplement and shall be presented in tabular format substantially similar to the
format utilized in such Appendix I. The Trustee shall be entitled 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.
In addition, the Trustee shall make available through the Trustee's
ASAP (Automated Statements Accessed by Phone) System, to Persons with an account
number thereon, the reports described in the preceding paragraph through
automated facsimile. The Trustee shall make available, upon request, to
Certificateholders, Certificate Owners identified to the Trustee by such
Certificate Owners, the Depositor, each Placement Agent, each Underwriter, the
Rating
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Agencies, the Master Servicer and the Special Servicer account numbers on the
Trustee's ASAP System.
(b) Subject to Section 8.15, upon advance written request, if required
by federal regulation, of any Certificateholder that is a savings association,
bank, or insurance company, the Trustee shall provide (to the extent in its
possession) to each such Certificateholder such reports and access to
non-privileged information and documentation regarding the Mortgage Loans and
the Certificates as such Certificateholder may reasonably deem necessary to
comply with applicable regulations of the Office of Thrift Supervision or
successor or other regulatory authorities with respect to investment in the
Certificates; provided that the Trustee shall be entitled to be reimbursed by
such Certificateholder for the Trustee's actual expenses incurred in providing
such reports and access.
(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 (in
clauses (i), (ii) and (iii) of the definition of Monthly Certificateholders
Report) provided to Certificateholders pursuant to this Section 5.4 on an annual
basis and such other customary information as the Trustee deems may be necessary
or desirable for such Holders to prepare their federal income tax returns.
(d) On each Distribution Date, the Trustee shall deliver to the
Placement Agents, the Underwriters, the Rating Agencies, the Depositor, the
Operating Adviser, the Master Servicer, the Special Servicer, anyone the
Depositor or either Placement Agent or Underwriter reasonably designates, and
upon request to any Certificateholder, Certificate Owner (as identified by such
Certificate Owner) or prospective Certificate Owner (as identified to the
Trustee by any existing Certificateholder or Certificate Owner), a report
substantially in the form of Exhibit Q (which may be delivered in an electronic
medium as the Trustee may determine from time to time) with the information
contained therein updated to the date of such report.
(e) The Trustee shall afford the Rating Agencies, the Depositor, the
Fiscal Agent, the Master Servicer, the Special Servicer, the Operating Adviser,
any Certificateholder, prospective Certificate Owner or any Person reasonably
designated by either Placement Agent, or any Underwriter upon reasonable notice
and during normal business hours, reasonable access to all relevant,
non-attorney privileged records and documentation regarding the applicable
Mortgage Loans, REO Property 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 of this Section 5.4 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, either Placement Agent or any Underwriter or any 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.
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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, REMIC Provisions, or other compliance guidance issued
by the Internal Revenue Service or any state or local taxing authority.
Consistent with this Pooling and Servicing Agreement, the Trustee shall provide
or cause to be provided (i) to the United States Treasury or other Persons
(including, but not limited to, the transferor of a Class R-I, Class R-II or
Class R-III Certificate, to a Disqualified Organization or to an agent that has
acquired a Class R-I, Class R-II or Class R-III Certificate on behalf of a
Disqualified Organization) such information as is necessary for the application
of any tax relating to the transfer of a Class R-I, Class R-II or Class R-III
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 in order for the Master Servicer to comply
with its obligations under this Section 5.5. The Trustee shall be entitled 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. Subject to Section 10.2(a),
respecting the final distribution on the Certificates, on each Distribution
Date, the Trustee shall (1) first, withdraw from the Distribution Account and
pay to the Trustee or the Paying Agent, on behalf of the Trustee, and the Fiscal
Agent any unpaid fees, expenses and other amounts then required to be paid
pursuant to this Agreement, and then, at the written direction of the Master
Servicer, withdraw from the Distribution Account and pay to the Master Servicer
and Special Servicer any unpaid servicing compensation or other amounts
currently required to be paid pursuant to this Agreement (to the extent not
previously withdrawn by the Master Servicer from the Certificate Account), and
(2) second, make distributions in the manner and amounts set forth below.
Each distribution to Holders of Certificates shall be made by check
mailed to such Holder's address as it appears on the Certificate Register of the
Certificate Registrar or, upon written request to the Trustee or the Paying
Agent no later than five days after the related Record Date (or upon standing
instructions given to the Trustee or the Paying Agent on the Closing Date or
within five days after any Record Date, which instructions may be revoked at any
time thereafter upon written notice to the Trustee or the Paying Agent five days
after the related Record Date) made by a Certificateholder by wire transfer in
immediately available funds to an account specified in the request of such
Certificateholder; provided, that (i) remittances to the Trustee shall be made
by wire transfer of immediately available funds to the Distribution Account; and
(ii) the final distribution in respect of any Certificate shall be made only
upon presentation and surrender of such Certificate at such location specified
by the Trustee in a notice delivered to Certificateholders pursuant to Section
10.2(a). If any payment required to be
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made on the Certificates is to be made on a day that is not a Business Day, then
such payment will be made on the next succeeding Business Day without
compensation for such delay. All distributions or allocations made with respect
to Holders of Certificates of a Class on each Distribution Date shall be made or
allocated among the outstanding Interests in such Class in proportion to their
respective initial Certificate Balances.
SECTION 6.2 REMIC I.
(a) On each Distribution Date, the Trustee shall be deemed to
distribute to itself, as holder of the REMIC I Regular Interests, for the
following purposes and in the following order of priority:
(i) from the portion of the Available Distribution Amount
attributable to interest collected or deemed collected on or with respect
to each Mortgage Loan or REO Property, Distributable Certificate Interest
to each Corresponding REMIC I Regular Interest;
(ii) from the portion of the Available Distribution Amount
attributable to principal collected or deemed collected on or with respect
to each Mortgage Loan or REO Property, principal to the Corresponding REMIC
I Regular Interest, until the Certificate Balance thereof is reduced to
zero;
(iii) any remaining funds, to reimburse any Realized Losses
previously allocated to the REMIC I Regular Interests, plus interest on
such Realized Losses previously allocated thereto, compounded monthly at
the applicable Pass-Through Rates; and
(iv) thereafter, to the Class R-I Certificateholders.
SECTION 6.3 REMIC II.
(a) On each Distribution Date, the Trustee shall be deemed to
distribute to itself, as holder of the REMIC II Regular Interests, for the
following purposes and in the following order of priority:
(i) an amount equal to Distributable Certificate Interest for the
Class A-1 Certificates, Class A-2 Certificates, Class X-1 Certificates and
Class X-2 Certificates to REMIC II Regular Interest A-1, REMIC II Regular
Interest A-2A, REMIC II Regular Interest A-2B, REMIC II Regular Interest B,
REMIC II Regular Interest C, REMIC II Regular Interest D, REMIC II Regular
Interest E, REMIC II Regular Interest F, REMIC II Regular Interest G, REMIC
II Regular Interest H, REMIC II Regular Interest J, REMIC II Regular
Interest K and REMIC II Regular Interest L, divided among such REMIC II
Regular Interests in proportion to (A) in the case of the REMIC II Regular
Interest A-1, REMIC II Regular Interest A-2A and REMIC II Regular Interest
A-2B, the Accrued Certificate Interest for such Distribution Date and (B)
in the case of REMIC II Regular Interest B, REMIC II Regular Interest C,
REMIC II Regular Interest D, REMIC II Regular Interest E, REMIC II Regular
Interest F, REMIC II Regular Interest G, REMIC Regular Interest H, REMIC II
Regular Interest J, REMIC II Regular
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Interest K and REMIC II Regular Interest L, the product of one-twelfth of
the Certificate Balance of such Interest and the sum of the related Class
X-1 Strip Rate and the related Class X-2 Strip Rate (if any);
(ii) to the REMIC II Regular Interest A-1, the Principal
Distribution Amount for such Distribution Date, until the Certificate
Balance of the REMIC II Regular Interest A-1 has been reduced to zero;
(ii) upon payment in full of the Certificate Balance of the REMIC
II Regular Interest A-1, to the REMIC II Regular Interest A-2A, the
Principal Distribution Amount for such Distribution Date (reduced by any
portion thereof deemed to be distributed to the REMIC II Regular Interest
A-1), until the Certificate Balance of the REMIC II Regular Interest A-2A
has been reduced to zero and, upon payment in full of the Certificate
Balance of the REMIC II Regular Amount of the REMIC II Regular Interest
A-2A, to the REMIC II Regular Interest A-2B, the Principal Distribution
Date for such Distribution Date (reduced by any portion thereof deemed to
be distributed to the REMIC II Regular Interest A-1 and REMIC II Regular
Interest A-2A), until the Certificate Balance of the REMIC II Regular
Interest A-2B has been reduced to zero;
(iv) to REMIC II Regular Interest A-1, REMIC II Regular Interest
A-2A, REMIC II Regular Interest A-2B, REMIC II Regular Interest B, REMIC II
Regular Interest C, REMIC II Regular Interest D, REMIC II Regular Interest
E, REMIC II Regular Interest F, REMIC II Regular Interest G, REMIC II
Regular Interest H, REMIC Regular Interest J and REMIC Regular Interest K,
pro rata on the basis of their respective entitlements to reimbursement
described in this clause (iv), to reimburse any Realized Losses previously
allocated to REMIC II Regular Interest A-1, REMIC II Regular Interest A-2A
and REMIC Regular Interest A-2B and to reimburse Realized Losses previously
allocated to REMIC II Regular Interest B, REMIC II Regular Interest C,
REMIC II Regular Interest D, REMIC II Regular Interest E, REMIC II Regular
Interest F, REMIC II Regular Interest G, REMIC II Regular Interest H, REMIC
II Regular Interest J and REMIC II Regular Interest K as a result of the
allocation of Realized Losses to the Class X Certificates plus interest on
such Realized Losses compounded monthly at one-twelfth of the applicable
Pass-Through Rate;
(v) to the REMIC II Regular Interest B, the remainder of the
Distributable Certificate Interest for such Interest for such Distribution
Date to the extent not distributed pursuant to clause (i) above;
(vi) upon payment in full of the Certificate Balances of the
REMIC II Regular Interest A-2A and REMIC II Regular Interest A-2B, to the
REMIC II Regular Interest B, the Principal Distribution Amount for such
Distribution Date (reduced by any portion thereof deemed to be distributed
to the REMIC II Regular Interest A-1, REMIC II Regular Interest A-2 and
REMIC II Regular Interest A-2B), until the Certificate Balance of the REMIC
II Regular Interest B has been reduced to zero;
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(vii) to the REMIC II Regular Interest B, to reimburse any
unreimbursed Realized Losses previously allocated thereto, plus interest on
such Realized Losses compounded monthly at one-twelfth the applicable
Pass-Through Rate;
(viii) to the REMIC II Regular Interest C, the remainder of the
Distributable Certificate Interest for such Interest for such Distribution
Date to the extent not distributed pursuant to clause (i) above;
(ix) upon payment in full of the Certificate Balance of the REMIC
II Regular Interest B, to the REMIC II Regular Interest C, the Principal
Distribution Amount for such Distribution Date (reduced by any portion
thereof deemed to be distributed to the REMIC II Regular Interest A-1,
REMIC II Regular Interest A-2A, REMIC II Regular Interest A-2B and REMIC II
Regular Interest B), until the Certificate Balance of the REMIC II Regular
Interest C has been reduced to zero;
(x) to the REMIC II Regular Interest C, to reimburse any
unreimbursed Realized Losses previously allocated thereto, plus interest on
such Realized Losses compounded monthly at one-twelfth the applicable
Pass-Through Rate;
(xi) to the REMIC II Regular Interest D, the remainder of the
Distributable Certificate Interest for such Interest for such Distribution
Date to the extent not distributed pursuant to clause (i) above;
(xii) upon payment in full of the Certificate Balance of the
REMIC II Regular Interest C, to the REMIC II Regular Interest D, the
Principal Distribution Amount for such Distribution Date (reduced by any
portion thereof deemed to be distributed to the REMIC II Regular Interest
A-1, REMIC II Regular Interest A-2A, REMIC Regular Interest A-2B, REMIC II
Regular Interest B and REMIC II Regular Interest C), until the Certificate
Balance of the REMIC II Regular Interest D has been reduced to zero;
(xiii) to the REMIC II Regular Interest D, to reimburse any
unreimbursed Realized Losses previously allocated thereto, plus interest on
such Realized Losses compounded monthly at one-twelfth the applicable
Pass-Through Rate;
(xiv) to the REMIC II Regular Interest E, the remainder of the
Distributable Certificate Interest for such Interest for such Distribution
Date to the extent not distributed pursuant to clause (i) above;
(xv) upon payment in full of the Certificate Balance of the REMIC
II Regular Interest D, to the REMIC II Regular Interest E, the Principal
Distribution Amount for such Distribution Date (reduced by any portion
thereof deemed to be distributed to the REMIC II Regular Interest A-1,
REMIC II Regular Interest A-2A, REMIC II Regular Interest A-2B, REMIC II
Regular Interest B, REMIC Regular Interest C and REMIC II Regular Interest
D), until the Certificate Balance of the REMIC II Regular Interest E has
been reduced to zero;
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(xvi) to the REMIC II Regular Interest E, to reimburse any
unreimbursed Realized Losses previously allocated thereto, plus interest on
such Realized Losses compounded monthly at one-twelfth the applicable
Pass-Through Rate;
(xvii) to the REMIC II Regular Interest F, the remainder of the
Distributable Certificate Interest for such Interest for such Distribution
Date to the extent not distributed pursuant to clause (i) above;
(xviii) upon payment in full of the Certificate Balance of the
REMIC II Regular Interest E, to the REMIC II Regular Interest F, the
Principal Distribution Amount for such Distribution Date (reduced by any
portion thereof deemed to be distributed to the REMIC II Regular Interest
A-1, REMIC II Regular Interest A-2A, REMIC II Regular Interest A-2B, REMIC
II Regular Interest B, REMIC Regular Interest C, REMIC II Regular Interest
D and REMIC II Regular Interest E), until the Certificate Balance of the
REMIC II Regular Interest F has been reduced to zero;
(xix) to the REMIC II Regular Interest F, to reimburse any
unreimbursed Realized Losses previously allocated thereto, plus interest on
such Realized Losses compounded monthly at one-twelfth the applicable
Pass-Through Rate;
(xx) to the REMIC II Regular Interest G, the remainder of the
Distributable Certificate Interest for such Interest for such Distribution
Date to the extent not distributed pursuant to clause (i) above;
(xxi) upon payment in full of the Certificate Balance of the
REMIC II Regular Interest F, to the REMIC II Regular Interest G, the
Principal Distribution Amount for such Distribution Date (reduced by any
portion thereof deemed to be distributed to the REMIC II Regular Interest
A-1, REMIC II Regular Interest A-2A, REMIC II Regular Interest A-2B, REMIC
II Regular Interest B, REMIC Regular Interest C, REMIC II Regular Interest
D, REMIC II Regular Interest E and REMIC II Regular Interest F), until the
Certificate Balance of the REMIC II Regular Interest G has been reduced to
zero;
(xxii) to the REMIC II Regular Interest G, to reimburse any
unreimbursed Realized Losses previously allocated thereto, plus interest on
such Realized Losses compounded monthly at one-twelfth the applicable
Pass-Through Rate;
(xxiii) to the REMIC II Regular Interest H, the remainder of the
Distributable Certificate Interest for such Interest for such Distribution
Date to the extent not distributed pursuant to clause (i) above;
(xxiv) upon payment in full of the Certificate Balance of the
REMIC II Regular Interest G, to the REMIC II Regular Interest H, the
Principal Distribution Amount for such Distribution Date (reduced by any
portion thereof deemed to be distributed to the REMIC II Regular Interest
A-1, REMIC II Regular Interest A-2A, REMIC II Regular Interest A-2B, REMIC
II Regular Interest B, REMIC Regular Interest C, REMIC II Regular Interest
D, REMIC II Regular Interest E, REMIC II Regular
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Interest F and REMIC II Regular Interest G), until the Certificate Balance
of the REMIC II Regular Interest H has been reduced to zero;
(xxv) to the REMIC II Regular Interest H, to reimburse any
unreimbursed Realized Losses previously allocated thereto, plus interest on
such Realized Losses compounded monthly at one-twelfth the applicable
Pass-Through Rate;
(xxvi) to the REMIC II Regular Interest J, the remainder of the
Distributable Certificate Interest for such Interest for such Distribution
Date to the extent not distributed pursuant to clause (i) above;
(xxvii) upon payment in full of the Certificate Balance of the
REMIC II Regular Interest H, to the REMIC II Regular Interest J, the
Principal Distribution Amount for such Distribution Date (reduced by any
portion thereof deemed to be distributed to the REMIC II Regular Interest
A-1, REMIC II Regular Interest A-2A, REMIC Regular Interest A-2B, REMIC II
Regular Interest B, REMIC Regular Interest C, REMIC II Regular Interest D,
REMIC II Regular Interest E, REMIC II Regular Interest F, REMIC II Regular
Interest G and REMIC II Regular Interest H), until the Certificate Balance
of the REMIC II Regular Interest J has been reduced to zero;
(xxviii) to the REMIC II Regular Interest J, to reimburse any
unreimbursed Realized Losses previously allocated thereto, plus interest on
such Realized Losses compounded monthly at one-twelfth the applicable
Pass-Through Rate;
(xxix) to the REMIC II Regular Interest K, the remainder of the
Distributable Certificate Interest for such Interest for such Distribution
Date to the extent not distributed pursuant to clause (i) above;
(xxx) upon payment in full of the Certificate Balance of the
REMIC II Regular Interest J to the REMIC II Regular Interest K, the
Principal Distribution Amount for such Distribution Date (reduced by any
portion thereof deemed to be distributed to the REMIC II Regular Interest
A-1, REMIC II Regular Interest A-2A, REMIC Regular Interest A-2B, REMIC II
Regular Interest B, REMIC Regular Interest C, REMIC II Regular Interest D,
REMIC II Regular Interest E, REMIC II Regular Interest F, REMIC II Regular
Interest G, REMIC II Regular Interest H and REMIC II Regular Interest J),
until the Certificate Balance of the REMIC II Regular Interest K has been
reduced to zero;
(xxxi) to the REMIC II Regular Interest K, to reimburse any
unreimbursed Realized Losses previously allocated thereto, plus interest on
such Realized Losses compounded monthly at one-twelfth the applicable
Pass-Through Rate;
(xxxii) to the REMIC II Regular Interest L, the remainder of the
Distributable Certificate Interest for such Interest for such Distribution
Date to the extent not distributed pursuant to clause (i) above;
(xxxiii) upon payment in full of the Certificate Balance of the
REMIC II Regular Interest K to the REMIC II Regular Interest L, the
Principal Distribution
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Amount for such Distribution Date (reduced by any portion thereof deemed to
be distributed to the REMIC II Regular Interest A-1, REMIC II Regular
Interest A-2A, REMIC Regular Interest A-2B, REMIC II Regular Interest B,
REMIC Regular Interest C, REMIC II Regular Interest D, REMIC II Regular
Interest E, REMIC II Regular Interest F, REMIC II Regular Interest G, REMIC
II Regular Interest H, REMIC II Regular Interest J and REMIC II Regular
Interest K), until the Certificate Balance of the REMIC II Regular Interest
L has been reduced to zero;
(xxxiv) to the REMIC II Regular Interest L, to reimburse any
unreimbursed Realized Losses previously allocated thereto, plus interest on
such Realized Losses compounded monthly at one-twelfth the applicable
Pass-Through Rate; and
(xxxv) thereafter, to the Class R-II Certificateholders.
SECTION 6.4 REMIC III.
(a) On each Distribution Date, the Trustee (or the Paying Agent on
behalf of the Trustee) shall withdraw from the Distribution Account an amount
equal to the Available Distribution Amount and shall distribute such amount in
the following amounts and order of priority:
(i) to the holders of the Class A-1, Class A-2, Class X-1 and
Class X-2 Certificates, Distributable Certificate Interest for such
Distribution Date, pro rata in proportion to the Distributable Certificate
Interest payable to each such Class;
(ii) to the holders of the Class A-1 Certificates, the Principal
Distribution Amount for such Distribution Date, until the Certificate
Balance of the Class A-1 Certificates has been reduced to zero;
(iii) upon payment in full of the Certificate Balance of the
Class A-1 Certificates, to the holders of the Class A-2 Certificates, the
Principal Distribution Amount for such Distribution Date (reduced by any
portion thereof distributed to the holders of the Class A-1 Certificates),
until the Certificate Balance of the Class A-2 Certificates has been
reduced to zero;
(iv) to the holders of the Class A Certificates, Class X-1 and
Class X-2 Certificates, pro rata on the basis of their respective
entitlements to reimbursement described in this clause (iv), to reimburse
any Realized Losses previously allocated thereto plus interest on such
Realized Losses compounded monthly at one-twelfth the applicable
Pass-Through Rate;
(v) to the holders of the Class B Certificates, Distributable
Certificate Interest for such Distribution Date;
(vi) upon payment in full of the Certificate Balance of the Class
A-2 Certificates, to the holders of the Class B Certificates, the Principal
Distribution Amount for such Distribution Date (reduced by any portion
thereof distributed to the
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holders of the Class A Certificates), until the Certificate Balance of the
Class B Certificates has been reduced to zero;
(vii) to the holders of the Class B Certificates, to reimburse
any Realized Losses previously allocated thereto, plus interest on such
Realized Losses compounded monthly at one-twelfth the applicable
Pass-Through Rate);
(viii) to the holders of the Class C Certificates, Distributable
Certificate Interest for such Distribution Date;
(ix) upon payment in full of the Certificate Balance of the Class
B Certificates, to the holders of the Class C Certificates, the Principal
Distribution Amount for such Distribution Date (reduced by any portion
thereof distributed to the holders of the Class A and Class B
Certificates), until the Certificate Balance of the Class C Certificates
has been reduced to zero;
(x) to the holders of the Class C Certificates, to reimburse any
Realized Losses previously allocated thereto, plus interest on such
Realized Losses compounded monthly at one-twelfth the applicable
Pass-Through Rate;
(xi) to the holders of the Class D Certificates, Distributable
Certificate Interest for such Distribution Date;
(xii) upon payment in full of the Certificate Balance of the
Class C Certificates, to the holders of the Class D Certificates, the
Principal Distribution Amount for such Distribution Date (reduced by any
portion thereof distributed to the holders of the Class A, Class B and
Class C Certificates), until the Certificate Balance of the Class D
Certificates has been reduced to zero;
(xiii) to the holders of the Class D Certificates, to reimburse
any Realized Losses previously allocated thereto, plus interest on such
Realized Losses compounded monthly at one-twelfth the applicable
Pass-Through Rate;
(xiv) to the holders of the Class E Certificates, Distributable
Certificate Interest for such Distribution Date;
(xv) upon payment in full of the Certificate Balance of the Class
D Certificates, to the such Distribution Date (reduced by any portion
thereof distributed to the holders of the Class A, Class B, Class C and
Class D Certificates), until the Certificate Balance of the Class E
Certificates has been reduced to zero;
(xvi) to the holders of the Class E Certificates, to reimburse
any Realized Losses previously allocated thereto, plus interest on such
Realized Losses compounded monthly at one-twelfth the applicable
Pass-Through Rate;
(xvii) to the holders of the Class F Certificates, Distributable
Certificate Interest for such Distribution Date;
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(xviii) upon payment in full of the Certificate Balance of the
Class E Certificates, to the holders of the Class F Certificates, the
Principal Distribution Amount for such Distribution Date (reduced by any
portion thereof distributed to the holders of the Class A, Class B, Class
C, Class D and Class E Certificates), until the Certificate Balance of the
Class F Certificates has been reduced to zero;
(xix) to the holders of the Class F Certificates, to reimburse
any Realized Losses previously allocated thereto, plus interest on such
Realized Losses compounded monthly at one-twelfth the applicable
Pass-Through Rate;
(xx) to the holders of the Class G Certificates, Distributable
Certificate Interest for such Distribution Date;
(xxi) upon payment in full of the Certificate Balance of the
Class F Certificates, to the holders of the Class G Certificates, the
Principal Distribution Amount for such Distribution Date (reduced by any
portion thereof distributed to the holders of the Class A, Class B, Class
C, Class D, Class E and Class F Certificates), until the Certificate
Balance of the Class G Certificates has been reduced to zero;
(xxii) to the holders of the Class G Certificates, to reimburse
any Realized Losses previously allocated thereto, plus interest on such
Realized Losses compounded monthly at one-twelfth the Pass-Through Rate;
(xxiii) to the holders of the Class H Certificates, Distributable
Certificate Interest for such Distribution Date;
(xxiv) upon payment in full of the Certificate Balance of the
Class G Certificates, to the holders of the Class H Certificates, the
Principal Distribution Amount for such Distribution Date (reduced by any
portion thereof distributed to the holders of the Class A, Class B, Class
C, Class D, Class E, Class F and Class G Certificates), until the
Certificate Balance of the Class H Certificates has been reduced to zero;
(xxv) to the holders of the Class H Certificates, to reimburse
any Realized Losses previously allocated thereto, plus interest on such
Realized Losses compounded monthly at one-twelfth the Pass-Through Rate;
(xxvi) to the holders of the Class J Certificates, Distributable
Certificate Interest for such Distribution date;
(xxvii) upon payment in full of the Certificate Balance of the
Class H Certificates, to the holders of the Class J Certificates, the
Principal Distribution Amount for such Distribution Date (reduced by a any
portion thereof distributed to the holders of the Class A, Class B, Class
C, Class D, Class E, Class F, Class G and Class H Certificates), until the
Certificate Balance of the Class J Certificates has been reduced to zero;
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(xxviii) to the holders of the Class J Certificates, to reimburse
any Realized Losses previously allocated thereto, plus interest on such
Realized Losses compounded monthly at one-twelfth the Pass-Through Rate;
(xxvix) to the holders of the Class K Certificates, Distributable
Certificate Interest for such Distributable Date;
(xxx) upon payment in full of the Certificate Balance of the
Class J Certificates, to the holders of the Class K Certificates, the
Principal Distribution Amount for such Distribution Date (reduced by any
portion thereof distributed to the holders of the Class A, Class B, Class
C, Class D, Class E, Class F, Class G, Class H and Class J Certificates),
until the Certificate Balance of the Class K Certificates has been reduced
to zero;
(xxxi) to the holders of the Class K Certificates, to reimburse
any Realized Losses previously allocated thereto, plus interest on such
Realized Losses compounded monthly at one-twelfth the Pass-Through Rate;
(xxxii) to the holders of the Class L Certificates, Distributable
Certificate Interest for such Distributable Date;
(xxxiii) upon payment in full of the Certificate Balance of the
Class K Certificates, to the holders of the Class L Certificates, the
Principal Distribution Amount for such Distribution Date (reduced by any
portion thereof distributed to the holders of the Class A, Class B, Class
C, Class D, Class E, Class F, Class G, Class H, Class J and Class K
Certificates), until the Certificate Balance of the Class L Certificates
has been reduced to zero;
(xxxiv) to the holders of the Class L Certificates, to reimburse
any Realized Losses previously allocated thereto, plus interest on such
Realized Losses compounded monthly at one-twelfth the Pass-Through Rate;
and
(xxxv) to the holders of the Class R-III Certificates at such
time as the Certificate Balances of all Classes of REMIC Regular
Certificates have been reduced to zero, and Realized Losses previously
allocated to each Holder have been reimbursed to the Holders of the REMIC
Regular Certificates, any amounts remaining on deposit in the Distribution
Account.
Notwithstanding the foregoing, on each Distribution Date occurring on
or after the earliest date, if any, upon which the Certificate Balances of all
Classes of Subordinate Certificates have been reduced to zero or the aggregate
Appraisal Reduction in effect is greater than or equal to Certificate Balances
of all Classes of Subordinate Certificates, the Principal Distribution Amount
will be distributed, first, to the holders of the Class A-1 and Class A-2
Certificates, pro rata, based on their respective Certificate Balances, in
reduction of their respective Certificate Balances, until the Certificate
Balance of each such Class is reduced to zero; and, second, to the holders of
the Class A-1 and Class A-2 Certificates, pro rata, based on their respective
Certificate Balances, for the unreimbursed amount of Realized Losses and Expense
Losses previously allocated to such Classes.
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SECTION 6.5 ALLOCATION OF REALIZED LOSSES, EXPENSE LOSSES AND
SHORTFALLS DUE TO NONRECOVERABILITY.
(a) REMIC I. On each Distribution Date, except as provided in
subsection (b) below,
(i) Realized Principal Losses on each Mortgage Loan realized
during the related Collection Period shall reduce the Certificate Balance
of the Corresponding REMIC I Regular Interest;
(ii) Realized Interest Losses on each Mortgage Loan shall be
allocated to reduce first, Distributable Certificate Interest for such
Distribution Date, and then Unpaid Interest in each case owing on the
Corresponding REMIC I Regular Interest; and to the extent that such
Realized Interest Loss exceeds such amount, shall be treated as an Expense
Loss;
(iii) Expense Losses (not otherwise applied above) realized
during the related Collection Period shall be allocated among the REMIC I
Regular Interests in proportion to their Certificate Balances after making
all other allocations for such Distribution Date.
(b) In the event that the Master Servicer, the Trustee, or the Fiscal
Agent determines that an Advance previously made by it is a Nonrecoverable
Advance and the Master Servicer withdraws the amount of such Advance from the
Certificate Account pursuant to Section 5.2(a) hereof (which amount shall be
treated as an Available Advance Reimbursement Amount pursuant to Section 4.6),
it shall determine the portion of the amount so withdrawn that is attributable
to (w) interest on the related Mortgage Loan; (x) principal on the related
Mortgage Loan; (y) Servicing Advances; and (z) Advance Interest. The portion of
the amount so withdrawn from the Certificate Account that is allocable to:
(i) amounts previously advanced as interest on the related
Mortgage Loan shall reduce the Available Distribution Amount for REMIC I
and shall be allocated to reduce the amount of interest paid on each REMIC
I Regular Interest on such Distribution Date in proportion to Distributable
Certificate Interest otherwise payable thereon, and shall result in Unpaid
Interest on each such REMIC I Regular Interest;
(ii) amounts previously advanced as principal on the related
Mortgage Loan shall reduce the Available Distribution Amount for REMIC I
and shall be allocated to reduce the principal paid on each REMIC I Regular
Interest on which principal would otherwise be paid on such Distribution
Date, in proportion to such principal payments; and
(iii) amounts previously advanced as Servicing Advances, as well
as Advance Interest owing to the Master Servicer, the Trustee, or the
Fiscal Agent with respect to Advances shall be treated as Expense Losses
and allocated in accordance with Section 6.5(a)(iii) above.
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(c) At such time as a Final Recovery Determination is made with
respect to any Mortgage Loan with respect to which the Master Servicer
previously had withdrawn amounts from the Certificate Account following a
determination that Advances previously made were Nonrecoverable Advances, or at
such other time as a Realized Loss shall occur with respect to any such Mortgage
Loan, the Master Servicer shall compute the Realized Loss with respect to such
Mortgage Loan and the Trustee shall allocate such Realized Loss as follows:
(i) to the extent that any Realized Principal Loss does not
exceed the Certificate Balance on the Corresponding REMIC I Regular
Interest, such Realized Principal Loss shall be allocated to such REMIC I
Regular Interest; and to the extent that any Realized Principal Loss
exceeds the Certificate Balance of the Corresponding REMIC I Regular
Interest, such Realized Principal Loss shall be allocated to the other
Corresponding REMIC I Regular Interests with respect to which distributions
of principal were reduced pursuant to Section 6.5(b)(ii) above, in
proportion to the amount of such reductions;
(ii) any Realized Interest Loss shall be allocated to the
Corresponding REMIC I Interest to the extent of Unpaid Interest thereon and
any remaining portion of the Realized Interest Loss shall be allocated as a
Realized Interest Loss on each REMIC I Regular Interest with respect to
which Unpaid Interest was created pursuant to Section 6.5(b)(i) above in
proportion to the amount of Unpaid Interest resulting from the reduction in
distributions of interest on such REMIC I Regular Interest pursuant to
Section 6.5(b)(i) above;
(iii) the portion of the amount recovered on the Mortgage Loan
with respect to which amounts were withdrawn from the Certificate Account
that are treated as recoveries of principal on the Mortgage Loan shall be
applied first, to make payments of principal on the Corresponding REMIC I
Regular Interest until the Certificate Balance thereof is reduced to zero
and thereafter to make payments of principal to the Corresponding REMIC I
Regular Interests with respect to which principal distributions were
reduced pursuant to Section 6.5(b)(ii) above, in proportion to the amount
of such reductions;
(iv) the portion of the amount recovered on the Mortgage Loan
with respect to which amounts were withdrawn from the Certificate Account
that are treated as recoveries of interest on the Mortgage Loan shall be
applied first, to make payments of Unpaid Interest on the Corresponding
REMIC I Regular Interest and thereafter to make payments of interest on
each REMIC I Interest with respect to which Unpaid Interest was created
pursuant to Section 6.5(b)(i) above in proportion to the amount of Unpaid
Interest resulting from the reduction in distributions of interest on such
REMIC I Regular Interest pursuant to Section 6.5(b)(i) above;
(v) the portion of the amount recovered on the Mortgage Loan with
respect to which amounts were withdrawn from the Certificate Account that
is treated as a recovery of expenses on the Mortgage Loan shall be applied
in reimbursement of Expense Losses on each REMIC I Regular Interest with
respect to
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which an Expense Loss was created pursuant to Section 6.5(b)(iii) above in
proportion to the amount of the Expense Loss allocated thereto pursuant to
Section 6.5(b)(iii) above.
(d) On each Distribution Date, all Realized Losses and Expense Losses
on the REMIC I Interests for such Distribution Date (or for prior Distribution
Dates, to the extent not previously allocated) shall be allocated to the
Corresponding REMIC II Regular Interests in the amounts and in the manner as
will be allocated to the REMIC Regular Certificates relating thereto pursuant to
Section 6.5(e). Realized Losses allocated to the Class X Certificates shall be
allocated among REMIC II Regular Interest A-1, REMIC II Regular Interest A-2A,
REMIC II Regular Interest A-2B, REMIC II Regular Interest B, REMIC II Regular
Interest C, REMIC II Regular Interest D, REMIC II Regular Interest E, REMIC II
Regular Interest G, REMIC II Regular Interest H, REMIC II Regular Interest J,
REMIC II Regular Interest K and REMIC II Regular Interest L, pro rata based on
the product of the Certificate Balance of such REMIC II Regular Interest and the
sum of the Class X-1 Strip Rate and the Class X-2 Strip Rate (if any) applicable
to the Class of Certificates relating to such REMIC II Regular Interest.
(e) REMIC III. On each Distribution Date, all Realized Losses on the
REMIC III Regular Interests for such Distribution Date (or for prior
Distribution Dates, to the extent not previously allocated) shall be allocated
to the REMIC Regular Certificates in Reverse Sequential Order, with such
reductions being allocated among the Class A-1 Certificates, Class A-2
Certificates, Class X-1 and Class X-2 Certificates, pro rata, in each case
reducing (A) the Certificate Balance of such Class until such Certificate
Balance is reduced to zero (in the case of the Class A Certificates); (B) Unpaid
Interest owing to such Class to the extent thereof; and (C) Distributable
Certificate Interest owing to such Class, provided, that Realized Losses and
Expense Losses shall not reduce the aggregate Certificate Balance of the REMIC
Regular Certificates below the sum of the aggregate Certificate Balances of the
REMIC II Regular Interests;
SECTION 6.6 NET AGGREGATE PREPAYMENT INTEREST SHORTFALLS. On each
Distribution Date, any Net Aggregate Prepayment Interest Shortfalls in REMIC I,
shall be allocated among the REMIC I Regular Interests, pro rata in proportion
to the Accrued Certificate Interest for each such REMIC I Regular Interest for
such Distribution Date and shall reduce Distributable Certificate Interest for
each such Interest. On each Distribution Date, any Net Aggregate Prepayment
Interest Shortfalls in REMIC II shall be allocated among the REMIC II Regular
Interests, pro rata in proportion to the Accrued Certificate Interest for each
such REMIC II Regular Interest for such Distribution Date and shall reduce
Distributable Certificate Interest for each such Interest. On each Distribution
Date, the amount of any Net Aggregate Prepayment Interest Shortfalls on the
REMIC II Regular Interests in the aggregate shall be allocated to the Class A,
Class X-1, Class X-2, Class B, Class C, Class D, Class E, Class F, Class G,
Class H, Class J, Class K and Class L Certificates by reducing the amount of
Distributable Certificate Interest thereon in the ratio that the Accrued
Certificate Interest with respect to such Certificates for such Distribution
Date bears to the total of the Accrued Certificate Interest for all such Classes
of Certificates for such Distribution Date. The amount of Net Aggregate
Prepayment Interest Shortfalls allocated to a Class of Certificates pursuant to
the preceding sentence shall reduce the Distributable Certificate Interest for
such Class for such Distribution Date.
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SECTION 6.7 ADJUSTMENT OF SERVICING FEES. The total Servicing Fee
payable to the Master Servicer shall be adjusted as provided in Section 8.10(c)
herein. Any amount retained by REMIC I as a result of a reduction of the
Servicing Fee shall be treated as interest collected with respect to the prepaid
Mortgage Loans with respect to which the Servicing Fee adjustment occurs.
SECTION 6.8 APPRAISAL REDUCTIONS.
Not later than the date on which an Appraisal Event occurs, the
Special Servicer shall have obtained (A) an Appraisal of the Mortgaged Property
securing such Mortgage Loan, if such Principal Balance exceeds $1,000,000 or (B)
at the option of the Special Servicer, if such Principal Balance is less than or
equal to $1,000,000, either an internal valuation prepared by the Special
Servicer in accordance with MAI Standards or an Appraisal which in all cases
shall be completed as of the date that such Mortgage Loan becomes a Required
Appraisal Loan; 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 valuation shall be conducted in accordance with the definition of "market
value" as set forth in 12 C.F.R. Section 225.65 and shall be updated at least
annually to the extent such Mortgage Loan remains a Required Appraisal Loan. The
cost of any such Appraisal or valuation, if not performed by the Special
Servicer, shall be an expense of the Trust and may be paid from REO Income,
treated as an Additional Trust Expense or advanced by the Master Servicer in
which event it shall be treated as a Servicing Advance, subject to Section 4.4
hereof. The Master Servicer, based on the Appraisal or internal valuation
provided to it by the Special Servicer, shall calculate any Appraisal Reduction.
The Master Servicer shall calculate or recalculate the Appraisal Reduction for
any Mortgage Loan based on updated Appraisals or internal valuations provided
from time to time to it by the Special Servicer.
SECTION 6.9 COMPLIANCE WITH WITHHOLDING REQUIREMENTS. Notwithstanding
any other provision of this Agreement to the contrary, the Trustee (or the
Paying Agent on behalf of the Trustee) shall comply with all federal withholding
requirements with respect to payments to Certificateholders of interest,
original issue discount, or other amounts that the Trustee reasonably believes
are applicable under the Code. The consent of Certificateholders shall not be
required for any such withholding and any amount so withheld shall be regarded
as distributed to the related Certificateholders for purposes of this Agreement.
In the event the Trustee or the Paying Agent withholds any amount from payments
made to any Certificateholder pursuant to federal withholding requirements, the
Trustee shall indicate to such Certificateholder the amount withheld.
SECTION 6.10 PREPAYMENT PREMIUMS. On each Distribution Date, the
Trustee shall be deemed to distribute to itself, as holder of the REMIC I
Regular Interests, any Prepayment Premiums collected on or with respect to the
Mortgage Loans. On each Distribution Date, the Trustee shall be deemed to
distribute to itself, as holder of the REMIC II Regular Interests, any
Prepayments Premiums deemed distributed to the REMIC I Regular Interests, to be
deemed distributed to the REMIC II Regular
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Interest then entitled to distributions of principal from the Principal
Distribution Amount (or, if more than one Class of such REMIC II Regular
Interests is entitled to distributions of principal from the Principal
Distribution Amount, such Prepayment Premiums shall be deemed to be allocated
among such Classes on a pro rata basis in accordance with the relative amounts
of such deemed distributions of principal). Any Prepayment Premium collected
with respect to a Mortgage Loan during any particular Collection Period will be
distributed to the REMIC Regular Certificates on the following Distribution Date
as follows: The Holders of the respective Classes of Principal Balance
Certificates, other than the Class F, Class G, Class H, Class J, Class K and
Class L Certificates, then entitled to distributions of principal from the
Principal Distribution Amount for such Distribution Date, will be entitled to an
amount equal to, in the case of each such Class, the product of (x) the lesser
of (A) the amount of the Prepayment Premium, and (B) (i) the amount of the
Prepayment Premium multiplied by (ii) a fraction, expressed as a percentage, 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, if both Classes of Class A Certificates are outstanding, the Class A-1
Certificates), over the relevant Discount Rate, and the denominator of which is
equal to the excess, if any, of the Mortgage Rate of the Mortgage Loan that
prepaid over the relevant Discount Rate and (y) a fraction, expressed as a
percentage, the numerator of which is the amount of the distribution of
principal made to such Class on such Distribution Date and the denominator of
which is equal to the aggregate distributions of principal made to all Classes
of Principal Balance Certificates on such Distribution. 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-1
Certificates.
ARTICLE VII
CONCERNING THE TRUSTEE AND THE FISCAL AGENT
The provisions of this Article shall apply to each of the Trustee and
the Fiscal Agent except as the context otherwise requires.
SECTION 7.1 DUTIES OF TRUSTEE AND THE FISCAL AGENT.
(a) The Trustee and the Fiscal Agent 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. The Trustee and the Fiscal Agent shall exercise such of the
rights and powers vested in it by this Agreement and following the occurrence
and during the continuation of any Event of Default hereunder, the Trustee and
the Fiscal Agent shall use the same degree of care and skill in its 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; provided that the
Trustee shall not be responsible for the accuracy or content of any such
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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 inform such
person of such non-conformity and request such instrument to be corrected, and
if the instrument is not corrected to the Trustee's reasonable satisfaction in a
reasonable period of time, the Trustee will provide notice thereof to the
Certificateholders.
(c) Neither the Trustee nor the Fiscal Agent nor any of their
respective directors, officers, employees, agents or Controlling Persons shall
have any liability to the Trust or the Certificateholders arising out of or in
connection with this Agreement, except for their respective negligence or
willful misconduct. 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 or
bad faith; 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 in its reasonable business judgment in accordance
with this Agreement or at the direction of Holders of Certificates
evidencing not less than a majority of the outstanding Certificate Balance
of the Certificates;
(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) neither the Trustee nor the Fiscal Agent nor 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 the Seller, including, without
limitation, in connection with actions taken pursuant to this Agreement;
(iv) the execution by the Trustee of any forms or plans of
liquidation in connection with any REMIC Pool shall not constitute a
representation by the Trustee or the Fiscal Agent as to the adequacy of
such form or plan of liquidation;
(v) the Trustee and the Fiscal Agent shall not be under any
obligation to appear in, prosecute or defend any legal action which is not
incidental to its duties as Trustee or Fiscal Agent, as applicable, in
accordance with this Agreement. In such event, all legal expense and costs
of such action shall be expenses and costs of the Trust and the Trustee and
the Fiscal Agent shall be entitled to be reimbursed therefor from the
Certificate Account pursuant to Section 5.2(a)(vi); 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
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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, unless a Responsible Officer of the Trustee obtains actual
knowledge of such failure.
SECTION 7.2 CERTAIN MATTERS AFFECTING THE TRUSTEE AND THE FISCAL
AGENT.
(a) Except as otherwise provided in Section 7.1:
(i) the Trustee or the Fiscal Agent may request, and may rely and
shall be protected in acting or refraining from acting upon any resolution,
Officer's Certificate, certificate of auditors or any other certificate,
statement, instrument, opinion, report, notice, request, consent, order,
approval, bond or other paper or document believed by it to be genuine and
to have been signed or presented by the proper party or parties;
(ii) the Trustee or the Fiscal Agent may consult with counsel and
the advice of such counsel and any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken or
suffered or omitted by it hereunder in good faith and in accordance with
such advice or Opinion of Counsel;
(iii) neither the Trustee nor the Fiscal Agent nor any of their
respective directors, officers, employees, agents or Controlling Persons
shall be personally liable for any action taken, suffered or omitted by the
Trustee or the Fiscal Agent in its reasonable business judgment and
reasonably believed by it to be authorized or within the discretion or
rights or powers conferred upon it by this Agreement;
(iv) the Trustee shall be under no obligation to exercise any
remedies after default as specified in 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 at least 25% of the Aggregate Principal Amount of the
Certificates then outstanding provided that, if the payment within a
reasonable time to the Trustee of the costs, expenses or liabilities likely
to be incurred by it in connection with the foregoing is, in the opinion of
the Trustee not reasonably assured to the Trustee by the security afforded
to it by the terms of this Agreement, the Trustee may require reasonable
indemnity against such expense or liability or payment of such estimated
expenses as a condition to proceeding. The Trustee's reasonable expenses
shall be paid by the Certificateholders requesting such examination;
(v) the Trustee and the Fiscal Agent may execute any of the
trusts or powers hereunder or perform any duties hereunder either directly
or by or through agents or attorneys, which agents or attorneys shall have
any or all of the rights, powers, duties and obligations of the Trustee or
the Fiscal Agent conferred on them by such appointment; provided that each
of the Trustee and the Fiscal Agent shall continue to be
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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 if it shall have reasonable
grounds for believing that repayment of such funds or adequate indemnity
against such liability is not assumed to it;
(viii) neither the Trustee nor the Fiscal Agent shall be liable
for any loss on any investment of funds pursuant to this Agreement;
provided, however, that this provision shall not operate to forgive the
Trustee or Fiscal Agent, in their respective individual capacities, for a
liability that either of them may have for any investment loss incurred on
such investment; and
(ix) unless otherwise specifically required by law, the Trustee
and the Fiscal Agent shall not be required to post any surety or bond of
any kind in connection with the execution or performance of its duties
hereunder.
(b) Following the Closing Date, the Trustee shall not accept any
contribution of assets to the Trust not specifically contemplated by this
Agreement unless the Trustee shall have received a Nondisqualification Opinion
at the expense of the Person desiring to contribute such assets with respect to
such contribution.
(c) All rights of action under this Agreement or under any of the
Certificates, enforceable by the Trustee, may be enforced by it without the
possession of any of the Certificates, or the production thereof at the trial or
any proceeding relating thereto, and any such suit, action or proceeding
instituted by the Trustee shall be brought in its name for the benefit of all
the Holders of such Certificates, subject to the provisions of this Agreement.
(d) The Trustee shall timely pay, from its own funds, the amount of
any and all federal, state and local taxes imposed on the Trust or its assets or
transactions including, without limitation, (A) "prohibited transaction" penalty
taxes as defined in Section 860F of the Code, if, when and as the same shall be
due and payable, (B) any tax on contributions to a REMIC after the Closing Date
imposed by Section 860G(d) of the Code and (C) any tax on "net income from
foreclosure property" as defined in Section 860G(c) of the Code, but only if
such 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, the
information contained in the Private Placement Memorandum or the Prospectus
Supplement for the REMIC III Certificates or Residual Certificates (other than
the certificate of authentication on the Certificates if the Trustee or the
Fiscal Agent is the Authenticating Agent) or of any Mortgage Loan, Assignment of
Mortgage or related document save that the Trustee and the Fiscal Agent
represent that, assuming due
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execution and delivery by the other parties hereto, this Agreement has been duly
authorized, executed and delivered by it and constitutes its valid and binding
obligation, enforceable against it in accordance with its terms except that such
enforceability may be subject to (A) applicable bankruptcy and insolvency laws
and other similar laws affecting the enforcement of the rights of creditors
generally, and (B) general principles of equity regardless of whether such
enforcement is considered in a proceeding in equity or at law. 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. No recourse shall be
had for any claim based on any provisions of this Agreement, the Private
Placement Memorandum, the Prospectus Supplement or the Certificates (except to
the extent of information furnished by the Trustee in the penultimate sentence
of the first paragraph under the caption entitled "DESCRIPTION OF THE
CERTIFICATES--The Trustee and the Fiscal Agent - The Trustee" in the Prospectus
Supplement), the Certificates, the Mortgage Loans or the assignment thereof
against either the Trustee or the Fiscal Agent in its individual capacity and
any such claim shall be asserted solely against the Trust or any indemnitor who
shall furnish indemnity as provided herein. Neither the Trustee nor the Fiscal
Agent shall be liable for any action or failure of any action by the Depositor
or the Master Servicer or the Special Servicer hereunder. 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 the
maintenance of any such perfection and priority, or for or with respect to the
efficacy of the Trust or its ability to generate the payments to be distributed
to Certificateholders under this Agreement, including, without limitation, the
existence, condition and ownership of any Mortgaged Property; the existence and
enforceability of any hazard insurance thereon; the validity of the assignment
of the Mortgage Loans to the Trust or of any intervening assignment; the
completeness of the Mortgage Loans; the performance or enforcement of the
Mortgage Loans (other than if the Trustee shall assume the duties of the Master
Servicer); the compliance by the Depositor, each Seller, the Mortgagor or the
Master Servicer or the Special Servicer with any warranty or representation made
under this Agreement or in any related document or the accuracy of any such
warranty or representation made under this Agreement or in any related document
prior to the receipt by a Responsible Officer of the Trustee of notice or other
discovery of any non-compliance therewith or any breach thereof; any investment
of monies by or at the direction of the Master Servicer or 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.
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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 rated not less than either
(a) "AA" by S&P and, if rated by DCR, "AA" by DCR, and if not rated by DCR, then
otherwise acceptable to DCR, if the Fiscal Agent does not have such ratings for
its long-term senior secured debt, or (b) "BBB" by S&P and, if rated by DCR,
"BBB" by DCR, or if not rated by DCR, then otherwise approved by DCR, if the
Fiscal Agent has a long-term senior secured debt rating of not less than "AA" by
S&P and "AA" by DCR, if rated by DCR, and if not rated by DCR, then otherwise
approved by DCR. If such corporation or national bank 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 or national bank
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. Upon receiving such notice of resignation, the Depositor will
promptly appoint a successor trustee or fiscal agent, as the case may be, except
in the case of the initial Trustee or Fiscal Agent, in which case both shall be
so replaced but may be replaced under this paragraph sequentially, 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. It shall be a condition
to the appointment of a successor trustee or fiscal agent that the Rating
Agencies shall have confirmed in writing that such appointment shall not result
in a downgrading, qualification or withdrawal of the ratings of each Class of
Certificates then rated.
(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 solely because
of the location of the Trustee in such state; 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,
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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 more than 50% of the Aggregate Principal Amount of
the Certificates then outstanding may for cause upon 30 days' written notice to
the Trustee or the Fiscal Agent and to the Depositor remove the Trustee or the
Fiscal Agent by such written instrument, signed by such Holders or their
attorney-in-fact duly authorized, one copy of which instrument shall be
delivered to the Depositor and one copy to the Trustee or the Fiscal Agent so
removed; the Depositor shall thereupon use its best efforts to appoint a
successor Trustee or the Fiscal Agent in accordance with this Section.
(e) Any resignation or removal of the Trustee or the Fiscal Agent and
appointment of a successor trustee or fiscal agent pursuant to any of the
provisions of this Section shall become effective upon acceptance of appointment
by the successor trustee and fiscal agent as provided in Section 7.7. Upon any
succession of the Trustee or the Fiscal Agent under this Agreement, the
predecessor Trustee or the Fiscal Agent shall be entitled to the payment of
compensation and reimbursement agreed to under this Agreement for services
rendered and expenses incurred. 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
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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 (at such predecessor
Trustee's own expense) 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 (at such predecessor Trustee's own
expense) 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 the
Fiscal Agent as provided in this Section, the successor Trustee or the Fiscal
Agent shall mail notice of the succession of such Trustee or Fiscal Agent
hereunder to all Holders of Certificates at their addresses as shown in the
Certificate Register and to the Rating Agencies. The expenses of such mailing
shall be borne by the successor Trustee or Fiscal Agent. If the successor
Trustee or Fiscal Agent fails to mail such notice within 10 days after
acceptance of appointment by the successor Trustee or Fiscal Agent, the Master
Servicer shall cause such notice to be mailed at the expense of the Trustee or
the Fiscal Agent, as applicable.
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
evidencing more than 50% of the aggregate Certificate Balance of the
Certificates then outstanding 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
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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 be liable for the actions
of any co-trustee or separate trustee appointed by it and shall have no
liability for the actions of any co-trustee or separate trustee appointed by the
Depositor or the Certificateholders pursuant to this paragraph.
(b) Every separate trustee, co-trustee, and custodian shall, to the
extent permitted by law, be appointed and act subject to the following
provisions and conditions:
(i) all powers, duties, obligations and rights conferred upon the
Trustee in respect of the receipt, custody and payment of moneys shall be
exercised solely by the Trustee;
(ii) all other rights, powers, duties and obligations conferred
or imposed upon the Trustee shall be conferred or imposed upon and
exercised or performed by the Trustee and such separate trustee,
co-trustee, or custodian jointly, except to the extent that under any law
of any jurisdiction in which any particular act or acts are to be performed
(whether as Trustee hereunder or as successor to the Master Servicer
hereunder) the Trustee shall be incompetent or unqualified to perform such
act or acts, in which event such rights, powers, duties and obligations,
including the holding of title to the Trust or any portion thereof in any
such jurisdiction, shall be exercised and performed by such separate
trustee, co-trustee, or custodian;
(iii) no trustee or custodian hereunder shall be personally
liable by reason of any act or omission of any other trustee or custodian
hereunder; and
(iv) the Trustee or, in the case of the Trust, the
Certificateholders evidencing more than 50% of the Aggregate Principal
Amount of the Certificates then 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
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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 to the extent, and in accordance with the standards, specified in Section
7.12 hereof.
(h) Subject to the consent of the Depositor, which consent shall not
be unreasonably withheld, the Trustee may appoint at any time a successor
Custodian. Until such time as the Trustee appoints a successor Custodian, the
Trustee shall be the Custodian hereunder. Upon the appointment of a successor
custodian, the Trustee and the Custodian shall enter into a custodial agreement.
SECTION 7.10 AUTHENTICATING AGENTS.
(a) The Trustee may appoint one or more Authenticating Agents which
shall be authorized to act on behalf of the Trustee in executing and
authenticating Certificates. Wherever reference is made in this Agreement to the
execution and authentication of Certificates by the Trustee or the Trustee's
certificate of authentication, such reference shall be deemed to include
execution and authentication on behalf of the Trustee by an Authenticating Agent
and a certificate of authentication executed on behalf of the Trustee by an
Authenticating Agent. Each Authenticating Agent must be acceptable to the
Depositor and must be a corporation or national bank 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
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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 OF TRUSTEE.
(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, judgements and any other costs, liabilities, fees and expenses
incurred in connection with any legal action incurred without negligence or
willful misconduct on their part, arising out of, or in connection with this
Agreement, the Certificates and the acceptance or administration of the trusts
created hereunder (including, without limitation, any unanticipated loss,
liability or expense incurred in connection with any action or inaction of the
Master Servicer, the Special Servicer or the Depositor hereunder but only to the
extent the Trustee is unable to recover such amount from such third party)
including the 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 the reports required to be provided by the Trustee
pursuant to this Agreement; provided that:
(i) with respect to any such claim, the Trustee shall have given
the Depositor and the Holders of the Certificates written notice thereof
promptly after the Trustee shall have knowledge thereof; provided, however
that failure to give such notice to the Depositor and the Holders of
Certificates shall not affect the Trustee's rights to indemnification
herein unless the Depositor's defense of such claim on behalf of the Trust
is materially prejudiced thereby;
(ii) while maintaining control over its own defense, the Trustee
shall cooperate and consult fully with the Depositor in preparing such
defense; and
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(iii) notwithstanding anything to the contrary in this Section
7.11, the Trust shall not be liable for settlement of any such claim by the
Trustee entered into without the prior consent of the Depositor, which
consent shall not be unreasonably withheld.
(b) The provisions of this Section 7.11 shall survive any termination
of this Agreement and the resignation or removal of the Trustee.
(c) The Depositor shall indemnify and hold harmless the Trustee, its
directors, officers, employees or agents and Controlling Persons from and
against any loss, claim, damage or liability, joint or several, and any action
in respect thereof, to which the Trustee, its directors, officers, employees or
agents or Controlling Person may become subject under the 1933 Act, insofar as
such loss, claim, damage, liability or action arises out of, or is based upon
any untrue statement or alleged untrue statement of a material fact contained in
the Private Placement Memorandum or in the Prospectus Supplement, or arises out
of, or is based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein in light of the circumstances under which they were made, not misleading
and shall reimburse the Trustee, its directors, officers, employees, agents or
Controlling Person for any legal and other expenses reasonably incurred by the
Trustee or any such director, officer, employee, agent or Controlling Person in
investigating or defending or preparing to defend against any such loss, claim,
damage, liability or action; provided, that the Depositor shall not be liable in
any such case to the extent that any such loss, claim, damage, liability or
action arises out of, or is based upon, any untrue statement or alleged untrue
statement or omission made in any such Private Placement Memorandum or
Prospectus Supplement in reliance upon and in conformity with written
information concerning the Trustee furnished to the Depositor by or on behalf of
the Trustee specifically for inclusion therein. It is hereby expressly agreed
that the only written information provided by the Trustee for inclusion in the
Prospectus Supplement is set forth in the penultimate sentence of the first
paragraph under the caption entitled "DESCRIPTION OF THE CERTIFICATES--The
Trustee and the Fiscal Agent - the Trustee." The Trustee shall immediately
notify the Depositor if a claim is made by a third party with respect to this
Section 7.11(b) entitling the Trustee, its directors, officers, employees,
agents or Controlling Person to indemnification hereunder, whereupon the
Depositor shall assume the defense of any such claim (with counsel reasonably
satisfactory to the Trustee) and pay all expenses in connection therewith,
including counsel fees, and promptly pay, discharge and satisfy any judgment or
decree which may be entered against it or them in respect of such claim. Any
failure to so notify the Depositor shall not affect any rights the Trustee, its
directors, officers, employees, agents or Controlling Person may have to
indemnification under this Section 7.11(b), unless the Depositor's defense of
such claim is materially prejudiced thereby. The indemnification provided herein
shall survive the termination of this Agreement and the resignation or removal
of the Trustee.
SECTION 7.12 FEES AND EXPENSES OF TRUSTEE AND THE FISCAL AGENT. The
Trustee shall be entitled to receive the Trustee Fee pursuant to Section
5.3(b)(ii) (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. The
Trustee and the Fiscal Agent shall also be entitled to recover from the Trust
all reasonable unanticipated
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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
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 TRUSTEE TO ACT; APPOINTMENT OF SUCCESSOR.
(a) On and after the time the Master Servicer is terminated pursuant
to this Agreement, the Trustee shall be the successor in all respects to the
Master Servicer in its capacity under this Agreement and the transactions set
forth or provided for therein and shall have all the rights and powers and be
subject to all the responsibilities, duties and liabilities relating thereto and
arising thereafter placed on the Master Servicer by the terms and provisions of
this Agreement; provided that, any failure to perform such duties or
responsibilities caused by the Master Servicer's failure to provide required
information shall not be considered a default by the Trustee hereunder. In
addition, the Trustee shall have no liability relating to (i) the
representations and warranties of the Master Servicer contained in this
Agreement or (ii) any obligation incurred by the Master Servicer prior to its
termination or resignation (including, without limitation, the Master Servicer's
obligation to repay losses resulting from the investment of funds in any account
established under this Agreement). In the Trustee's capacity as such successor,
the Trustee shall have the same limitations on liability granted to the Master
Servicer in this Agreement. As compensation therefor, the Trustee shall be
entitled to receive all the compensation payable to the Master Servicer set
forth in this Agreement, including, without limitation, the Servicing Fee.
(b) Notwithstanding the above, the Trustee (A) may, if the Trustee is
unwilling to so act, or (B) shall, if it is unable to so act, appoint, or
petition a court of competent jurisdiction to appoint any established commercial
or multifamily mortgage finance institution, servicer or special servicer or
mortgage servicing institution having a net worth of not less than $15,000,000,
meeting such other standards for a successor servicer as are set forth in this
Agreement and with respect to which Rating Agency Confirmation is obtained, as
the successor to the Master Servicer hereunder in the assumption of all of the
responsibilities, duties or liabilities of a servicer as Master Servicer
hereunder. Pending any such appointment, the Trustee shall act in such capacity
as hereinabove provided. Any entity designated by the Trustee as
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successor Master Servicer may be an Affiliate of the Trustee; provided that,
such Affiliate must meet the standards for the Master Servicer as set forth
herein. In connection with such appointment and assumption, the Trustee may make
such arrangements for the compensation of such successor out of payments on
Mortgage Loans as it and such successor shall agree subject to Section 8.10. The
Trustee and such successor shall take such actions, consistent with this
Agreement as shall be necessary to effectuate any such succession. The Master
Servicer shall cooperate with the Trustee and any successor servicer in
effecting the termination of the Master Servicer's responsibilities and rights
under this Agreement, including, without limitation, notifying Mortgagors of the
assignment of the servicing function and providing the Trustee and successor
servicer all documents and records in its possession in electronic or other form
reasonably requested by the successor servicer to enable the successor servicer
to assume the Master Servicer's functions hereunder and the transfer to the
Trustee or such successor servicer of all amounts which shall at the time be or
should have been deposited by the Master Servicer in the Certificate Account and
any other account or fund maintained with respect to the Certificates or
thereafter be received by the Master Servicer with respect to the Mortgage
Loans. Neither the Trustee nor any other successor servicer shall be deemed to
be in default hereunder by reason of any failure to make, or any delay in
making, any distribution hereunder or any portion thereof caused by (i) the
failure of the Master Servicer to deliver, or any delay in delivering, cash,
documents or records to it, or (ii) restrictions imposed by any regulatory
authority having jurisdiction over the Master Servicer. The Trustee shall be
reimbursed for all of its out-of-pocket expenses incurred in connection with
obtaining such successor Master Servicer by the Trust within 30 days of the
Trustee's submission of an invoice with respect thereto, to the extent such
expenses have not been reimbursed by the Master Servicer as provided herein;
such expenses paid by the Trust shall be deemed to be an Additional Trust
Expense.
(c) On and after the time the Special Servicer is terminated pursuant
to this Agreement, in accordance with Section 9.30, the Trustee shall be the
successor in all respects to the Special Servicer in its capacity under this
Agreement and the transactions set forth or provided for therein and shall have
all the rights and powers and be subject to all the responsibilities, duties and
liabilities relating thereto and arising thereafter placed on the Special
Servicer by the terms and provisions of this Agreement; provided that, any
failure to perform such duties or responsibilities caused by the Special
Servicer's failure to provide required information shall not be considered a
default by the Trustee hereunder. In addition, the Trustee shall have no
liability relating to (i) the representations and warranties of the Special
Servicer contained in this Agreement or (ii) any obligation incurred by the
Special Servicer prior to its termination or resignation. In the Trustee's
capacity as such successor, the Trustee shall have the same limitations on
liability granted to the Special Servicer in this Agreement. As compensation
therefor, the Trustee shall be entitled to receive all the compensation payable
to the Special Servicer set forth in this Agreement, including, without
limitation the Special Servicer Compensation.
(d) Notwithstanding the above, the Trustee may, if the Trustee shall
be unwilling to so act, or shall, if it is unable to so act, appoint, or
petition a court of competent jurisdiction to appoint, any established
commercial or multifamily mortgage finance institution, special servicer or
mortgage servicing institution having a net worth of not less than $15,000,000,
and meeting such other standards for a successor Special Servicer as are set
forth in Section 9.20, and with respect to which Rating Agency Confirmation is
obtained, as the
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successor to the Special Servicer hereunder in the assumption of all of the
responsibilities, duties or liabilities of a special servicer as Special
Servicer hereunder. Pending any such appointment, the Trustee shall act in such
capacity as hereinabove provided. Any entity designated by the Trustee as
successor Special Servicer may be an Affiliate of the Trustee; provided that,
such Affiliate must meet the standards for a successor Special Servicer set
forth herein. In connection with such appointment and assumption, the Trustee
may make such arrangements for the compensation of such successor out of
payments on Mortgage Loans as it and such successor shall agree; provided that
no such compensation shall be in excess of that permitted to the Special
Servicer under this Agreement. The Trustee and such successor shall take such
actions, consistent with this Agreement as shall be necessary to effectuate any
such succession. The Special Servicer shall cooperate with the Trustee and any
successor Special Servicer in effecting the termination of the Special
Servicer's responsibilities and rights under this Agreement, including, without
limitation, notifying Mortgagors of Specially Serviced Mortgage Loans of the
assignment of the special servicing function and providing the Trustee and
successor Special Servicer all documents and records in its possession in
electronic or other form reasonably requested by the successor Special Servicer
to enable the successor Special Servicer to assume the Special Servicer's
functions hereunder and the transfer to the Trustee or such successor Special
Servicer of all amounts which shall at the time be or should have been deposited
by the Special Servicer in the Certificate Account and any other account or fund
maintained with respect to the Certificates or thereafter be received by the
Special Servicer with respect to the Mortgage Loans. Neither the Trustee nor any
other successor Special Servicer shall be deemed to be in default hereunder by
reason of any failure to make, or any delay in making, any distribution
hereunder or any portion thereof caused by (i) the failure of the Special
Servicer to deliver, or any delay in delivering, cash, documents or records to
it, or (ii) restrictions imposed by any regulatory authority having jurisdiction
over the Special Servicer. The Trustee shall be reimbursed for all of its
out-of-pocket expenses incurred in connection with obtaining such successor
Special Servicer by the Trust within 30 days of submission of an invoice with
respect thereto; to the extent such expenses have not been reimbursed by the
Special Servicer as provided herein; and such expenses paid by the Trust shall
be deemed to be an Additional Trust Expense.
SECTION 7.15 NOTIFICATION TO HOLDERS. Upon termination of the Master
Servicer or the Special Servicer, or appointment of a successor to the Master
Servicer or the Special 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 7.16 REPRESENTATIONS AND WARRANTIES OF THE TRUSTEE AND THE
FISCAL AGENT.
(a) The Trustee hereby represents and warrants as of the Closing Date
that:
(i) the Trustee is a national banking association, duly
organized, validly existing and in good standing under the laws governing
its creation and existence and has full 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;
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(ii) the execution and delivery by the Trustee of this Agreement
have been duly authorized by all necessary action on the part of the
Trustee; neither the execution and delivery of this Agreement, nor the
consummation of the transactions contemplated in this Agreement, nor
compliance with the provisions of this Agreement, will conflict with or
result in a breach of, or constitute a default under, (i) any of the
provisions of any law, governmental rule, regulation, judgment, decree 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, (ii) the organizational documents of the Trustee, or (iii)
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, to applicable bankruptcy,
reorganization, insolvency, moratorium and other similar laws affecting
creditors' rights generally as from time to time in effect, and to general
principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law); and
(v) there are no actions, suits or proceeding 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 which would be likely to impair materially
the ability of the Trustee to perform under the terms of this Agreement.
(b) The Fiscal Agent hereby represents and warrants as of the Closing
Date that:
(i) the Fiscal Agent is a foreign banking corporation duly
organized, validly existing and in good standing under the laws governing
its creation and existence and has full corporate power and authority to
own its property, to carry on its business as presently conducted, and to
enter into and perform its obligations under this Agreement;
(ii) the execution and delivery by the Fiscal Agent of this
Agreement have been duly authorized by all necessary corporate action on
the part of the Fiscal Agent; neither the execution and delivery of this
Agreement, nor the consummation of
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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, (i) any of the provisions of any law,
governmental rule, regulation, judgment, decree 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, to applicable bankruptcy,
reorganization, insolvency, moratorium and other similar laws affecting
creditors' rights generally as from time to time in effect, and to general
principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law); and
(v) there are no actions, suits or proceedings pending or, to the
best of the Fiscal Agent's knowledge, threatened, against the Fiscal Agent
that, either in any one instance or in the aggregate, would draw into
question the validity of this Agreement, or which would be likely to impair
materially the ability of the Fiscal Agent to perform under the terms of
this Agreement.
SECTION 7.17 FIDELITY BOND AND ERRORS AND OMISSIONS INSURANCE
POLICY MAINTAINED BY THE TRUSTEE AND THE FISCAL AGENT. The Trustee and the
Fiscal Agent, at their own respective expense, each shall maintain in effect a
Fidelity Bond and a Errors and Omissions Insurance Policy. The Errors and
Omissions Insurance Policy and Fidelity Bond shall be issued by a Qualified
Insurer in form and in amount customary for trustees and fiscal agents in
similar transactions (unless the Trustee or the Fiscal Agent, as the case may
be, self insures as provided below). In the event that any such Errors and
Omissions Insurance Policy or Fidelity Bond ceases to be in effect, the Trustee
or the Fiscal Agent, as the case may be, shall obtain a comparable replacement
policy or bond from an insurer or issuer meeting the requirements set forth
above as of the date of such replacement. So long as the long-term debt rating
of the Trustee or the Fiscal Agent, as the case may be, is not less than two
rating categories (ignoring pluses or minuses) lower than the highest rating of
the Certificates, but in any event not less than "A" as rated by S&P and "A" as
rated by DCR, respectively, the Trustee or the Fiscal Agent, as
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the case may be, may self-insure for the Fidelity Bond and the Errors and
Omissions Insurance Policy.
ARTICLE VIII
ADMINISTRATION AND SERVICING
OF MORTGAGE LOANS
SECTION 8.1 SERVICING STANDARD; SERVICING DUTIES.
(a) Subject to the express provisions of this Agreement, for and on
behalf of the Trust and for the benefit of the Certificateholders as a whole,
the Master Servicer shall service and administer the Mortgage Loans in
accordance with the Servicing Standard and the terms of this Agreement.
In connection with such servicing and administration, the Master
Servicer shall seek to maximize the timely recovery of principal and interest on
the Mortgage Notes in the best economic interests of the Certificateholders as a
whole; provided, however, that nothing herein contained shall be construed as an
express or implied guarantee by the Master Servicer of the collectibility of
payments on the Mortgage Loans or shall be construed as impairing or adversely
affecting any rights or benefits specifically provided by this Agreement to the
Master Servicer, including with respect to Servicing Fees or the right to be
reimbursed for Advances.
(b) The Master Servicer, in the case of an event specified in clause
(x) of this subclause (b), and the Special Servicer, in the case of an event
specified in clause (y) of this subclause (b), shall each send a written notice
to the other and to the Trustee within two Business Days after becoming aware
(x) that a Servicing Transfer Event has occurred with respect to a Mortgage Loan
or (y) that a Mortgage Loan has become a Rehabilitated Mortgage Loan, which
notice shall identify the applicable Mortgage Loan and, in the case of an event
specified in clause (x) of this subclause (b) above, the Servicing Transfer
Event that occurred.
SECTION 8.2 FIDELITY BOND AND ERRORS AND OMISSIONS INSURANCE POLICY
MAINTAINED BY THE MASTER SERVICER. The Master Servicer, at its expense, shall
maintain in effect a Servicer Fidelity Bond and a Servicer Errors and Omissions
Insurance Policy. The Servicer Errors and Omissions Insurance Policy and
Servicer Fidelity Bond shall be issued by a Qualified Insurer (unless the Master
Servicer self insures as provided below) and be in form and amount consistent
with the Servicing Standard. In the event that any such Servicer Errors and
Omissions Insurance Policy or Servicer Fidelity Bond ceases to be in effect, the
Master Servicer shall obtain a comparable replacement policy or bond from an
insurer or issuer meeting the requirements set forth above as of the date of
such replacement. So long as the long-term rating of the Master Servicer is not
less than two rating categories (ignoring pluses or minuses) lower than the
highest rating of the Certificates, but in any event not less than "A" as rated
by S&P and "A" as rated by DCR, respectively, the Master Servicer may
self-insure for the Servicer Fidelity Bond and the Servicer Errors and Omissions
Insurance Policy.
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SECTION 8.3 MASTER SERVICER'S GENERAL POWER AND DUTIES.
(a) The Master Servicer shall service and administer the Mortgage
Loans and shall, subject to Sections 8.7, 8.18, 8.19, 8.27 and Article XII
hereof and as otherwise provided herein and by the Code, have full power and
authority to do any and all things which it may deem necessary or desirable in
connection with such servicing and administration in accordance with the
Servicing Standard. To the extent consistent with the foregoing and subject to
any express limitations and provisions set forth in this Agreement, the Master
Servicer shall have full power and authority with respect to each Mortgage Loan
and Mortgaged Property (other than any Specially Serviced Mortgaged Loan and the
related Mortgaged Property or any REO Property) to do or cause to be done any
and all things that it may deem necessary or desirable in connection with such
servicing and administration, including but not limited to, the power and
authority, subject to the terms hereof, (A) to execute and deliver, on behalf of
the Certificateholders and the Trustee, customary consents or waivers and other
instruments and documents (including, without limitation, estoppel certificates,
financing statements, continuation statements, title endorsements and reports
and other documents and instruments necessary to preserve and maintain the lien
on the related Mortgaged Property and related collateral), (B) to consent to
assignments and assumptions or substitutions, and transfers of interest of any
Mortgagor, in each case subject to and in accordance with the terms of the
related Mortgage Loan and Section 8.7, (C) to collect any Insurance Proceeds and
Liquidation Proceeds, (D) to consent to any subordinate financings to be secured
by any related Mortgaged Property to the extent that such consent is required
pursuant to the terms of the related Mortgage or which otherwise is required and
to administer and monitor the application of such proceeds and awards in
accordance with the terms of the Mortgage Loan as the Master Servicer deems
reasonable under the circumstances, (E) to consent to the application of any
proceeds of insurance policies or condemnation awards to the restoration of the
related Mortgaged Property or otherwise, (F) to bring an action in a court of
law or equity to enforce rights of the Trustee and the Certificateholders with
respect to the related Mortgaged Properties, (G) to execute and deliver, on
behalf of the Certificateholders and the Trustee, documents relating to the
management, operation, maintenance, repair, leasing and marketing of the related
Mortgaged Properties, including agreements and requests by the Mortgagor with
respect to modifications of the standards of operation and management of the
Mortgaged Properties or the replacement of asset managers, (H) to obtain,
release, waive or modify any term other than a Money Term of a Mortgage Loan and
related documents subject to and to the extent permitted by Section 8.18, (I) to
exercise all rights, powers and privileges granted or provided to the holder of
the Mortgage Notes under the terms of the Mortgage, including all rights of
consent or approval thereunder, (J) to enter into lease subordination
agreements, non-disturbance and attornment agreements or other leasing or rental
arrangements which may be requested by the Mortgagor or the Mortgagor's tenants,
(K) to join the Mortgagor in granting, modifying or releasing any easements,
covenants, conditions, restrictions, equitable servitudes, or land use or zoning
requirements with respect to the Mortgaged Properties to the extent such does
not adversely affect the value of the related Mortgage Loan or Mortgaged
Property, and (L) to execute and deliver, on behalf of itself, the Trustee, the
Trust or any of them, any and all instruments of satisfaction or cancellation,
or of partial or full release or discharge and all other comparable instruments,
with respect to the Mortgage Loans and with respect to the Mortgaged Properties.
Notwithstanding the above, the Master Servicer shall have no power to (i) waive
any Prepayment Premiums or (ii) consent to any modification of a Money Term of a
Mortgage Loan. Nothing
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contained in this Agreement shall limit the ability of the Master Servicer to
lend money to (to the extent not secured, in whole or in part, by any Mortgaged
Property), accept deposits from and otherwise generally engage in any kind of
business or dealings with any Mortgagor as though the Master Servicer was not a
party to this Agreement or to the transactions contemplated hereby; provided,
however, that this sentence shall not modify the Servicing Standard.
(b) The Master Servicer shall not be obligated to service and
administer the Mortgage Loans which have become and continue to be Specially
Serviced Mortgage Loans, except as specifically provided herein. The Master
Servicer shall be required to make all calculations and prepare all reports
required hereunder with respect to such Specially Serviced Mortgage Loans (other
than calculations and reports expressly required to be made by the Special
Servicer hereunder) as if no Servicing Transfer Event had occurred and shall
continue to collect all Scheduled Payments, make Servicing and P&I Advances as
set forth herein and to render such incidental services with respect to such
Specially Serviced Mortgage Loans, all as are specifically provided for herein,
but shall have no other servicing or other duties with respect to such Specially
Serviced Mortgage Loans. The Master Servicer shall give notice within three
Business Days to the Special Servicer of any collections it receives from any
Specially Serviced Mortgage Loans, subject to changes agreed upon from time to
time by the Special Servicer and the Master Servicer. The Special Servicer shall
instruct within one Business Day after receiving such notice the Master Servicer
on how to apply such funds. The Master Servicer within one Business Day after
receiving such instructions shall apply such funds in accordance with the
Special Servicer's instructions. Each Mortgage Loan that becomes a Specially
Serviced Mortgage Loan shall continue as such until such Mortgage Loan becomes a
Rehabilitated Mortgage Loan. The Master Servicer shall not be required to
initiate extraordinary collection procedures or legal proceedings with respect
to any Mortgage Loan or to undertake any pre-foreclosure procedures.
(c) Concurrently with the execution of this Agreement, the Trustee
will sign the Power of Attorney attached hereto as Exhibit S-1. The Master
Servicer, shall promptly notify the Trustee of the execution and delivery of any
document on behalf of the Trustee under such Power-of-Attorney. From time to
time until the termination of the Trust, upon receipt of written request of the
Master Servicer, the Trustee shall furnish the Master Servicer with any
additional powers of attorney and other documents necessary or appropriate to
enable the Master Servicer to service and administer the Mortgage Loans
including, without limitation, documents relating to the management, operation,
maintenance, repair, leasing or marketing of the Mortgaged Properties. The
Master Servicer shall indemnify the Trustee for any costs, liabilities and
expenses (including attorneys' fees) incurred by the Trustee in connection with
the intentional or negligent misuse of such power of attorney by the Master
Servicer.
(d) The Master Servicer shall make efforts consistent with the
Servicing Standard and the terms of this Agreement to collect all payments
called for under the terms and provisions of the applicable Mortgage Loans
(other than Specially Serviced Mortgage Loans or REO Properties).
(e) The Master Servicer shall segregate and hold all funds collected
and received pursuant to any Mortgage Loan constituting Escrow Amounts separate
and apart from any of its own funds and general assets and shall establish and
maintain one or more segregated
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custodial accounts (each, an "Escrow Account") into which all Escrow Amounts
shall be deposited within one (1) Business Day after receipt. The Master
Servicer shall also deposit into each Escrow Account any amounts representing
losses on Eligible Investments pursuant to the immediately succeeding paragraph
and any Insurance Proceeds or Liquidation Proceeds which are required to be
applied to the restoration or repair of any Mortgaged Property pursuant to the
related Mortgage Loan. Each Escrow Account shall be maintained in accordance
with the requirements of the related Mortgage Loan and in accordance with the
Servicing Standard. Withdrawals from a Escrow Account may be made by the Master
Servicer only:
(i) to effect timely payments of items constituting Escrow
Amounts for the related Mortgage Loan;
(ii) to transfer funds to the Certificate Account to reimburse
the Master Servicer for any Advance relating to Escrow Amounts, but only from
amounts received with respect to the related Mortgage Loan which represent late
collections of Escrow Amounts thereunder;
(iii) for application to the restoration or repair of the related
Mortgaged Property in accordance with the related Mortgage Loan and the
Servicing Standard;
(iv) to clear and terminate such Escrow Account upon the
termination of this Agreement or pay-off of the related Mortgage Loan;
(v) to pay from time to time to the related Mortgagor any
interest or investment income earned on funds deposited in the Escrow Account if
such income is required to be paid to the related Mortgagor under applicable law
or by the terms of the Mortgage Loan, or otherwise to the Master Servicer; and
(vi) to remove any funds deposited in a Escrow Account that were
not required to be deposited therein or to refund amounts to the Mortgagors
determined to be overages.
Subject to the immediately succeeding sentence, (i) the Master
Servicer may direct any depository institution or trust company in which the
Escrow Accounts are maintained to invest the funds held therein in one or more
Eligible Investments; provided, however, that such funds shall be either (x)
immediately available or (y) available in accordance with a schedule which will
permit the Master Servicer to meet the payment obligations for which the Escrow
Account was established; (ii) the Master Servicer shall be entitled to all
income and gain realized from any such investment of funds as additional
servicing compensation; and (iii) the Master Servicer shall deposit from its own
funds in the applicable Escrow Account the amount of any loss incurred in
respect of any such investment of funds immediately upon the realization of such
loss. The Master Servicer shall not direct the investment of funds held in any
Escrow Account and retain the income and gain realized therefrom if the terms of
the related Mortgage Loan or applicable law permit the Mortgagor to be entitled
to the income and gain realized from the investment of funds deposited therein.
In such event, (1) the Master Servicer shall direct the depository institution
or trust company in which such Escrow Accounts are maintained to invest the
funds held therein in accordance with the Mortgagor's written investment
instructions, if the
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terms of the related Mortgage Loan or applicable law require the Master Servicer
to invest such funds in accordance with the Mortgagor's directions; and (2) in
the absence of appropriate written instructions from the Mortgagor, the Master
Servicer shall have no obligation to, but may be entitled to, direct the
investment of such funds; provided, however, that in either event (i) such funds
shall be either (y) immediately available or (z) available in accordance with a
schedule which will permit the Master Servicer to meet the payment obligations
for which the Escrow Account was established, and (ii) the Master Servicer shall
have no liability for any loss in investments of such funds that are invested
pursuant to written instructions from the Mortgagor.
(f) The relationship of each of the Master Servicer and the Special
Servicer to the Trustee and 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.
(g) With respect to each Mortgage Loan, if required by the terms of
the related Mortgage Loan, any Lock-Box Agreement or similar agreement, the
Master Servicer shall establish and maintain, in accordance with the Servicing
Standard, one or more lock-box, cash management or similar 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. No Lock-Box Account is
required to be an Eligible Account. The Master Servicer shall apply the funds
deposited in such accounts in accordance with terms of the related Mortgage, any
Lock-Box Agreement and in accordance with the Servicing Standard.
SECTION 8.4 SUB-SERVICING. The Master Servicer may appoint one or more
sub-servicers (each, a "Sub-Servicer") to perform all or any portion of its
duties hereunder for the benefit of the Trustee and the Certificateholders. The
Master Servicer shall supervise, administer, monitor, enforce and oversee the
servicing of the applicable Mortgage Loans by any Sub-Servicer appointed by it.
The terms of any arrangement or agreement between the Master Servicer and a
Sub-Servicer, shall provide that such agreement or arrangement may be
terminated, without cause and without the payment of any termination fees, by
the Trustee in the event such Master Servicer is terminated in accordance with
this Agreement. In addition, neither the Trustee nor the Certificateholders
shall have any direct obligation or liability (including, without limitation,
indemnification obligations) with respect to any Sub-Servicer. The Master
Servicer shall pay the costs of enforcement against any of its Sub-Servicers at
its own expense, but shall be reimbursed therefor only (i) from a general
recovery resulting from such enforcement only to the extent that such recovery
exceeds all amounts due in respect of the related Mortgage Loans or (ii) from a
specific recovery of costs, expenses or attorneys fees against the party against
whom such enforcement is directed. Notwithstanding the provisions of any
Sub-Servicing Agreement, any of the provisions of this Agreement relating to
agreements or arrangements between the Master Servicer or a Sub-Servicer, or
reference to actions taken through a Sub-Servicer or otherwise, the Master
Servicer shall remain obligated and liable to the Trustee and the
Certificateholders for the servicing and administering of the applicable
Mortgage Loans in accordance with (and subject to the limitations contained
within) the provisions of this Agreement without diminution of such obligation
or liability by virtue of indemnification from a Sub-Servicer and to the same
extent and under the same terms and conditions as if the Master Servicer alone
were servicing and administering the Mortgage Loans.
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SECTION 8.5 MASTER SERVICER MAY OWN CERTIFICATES. The Master Servicer
and any agent of the Master Servicer 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 Master Servicer or such agent; provided, however that if the
Master Servicer is Wells Fargo Bank, National Association, then the Master
Servicer may not purchase any Certificate for a price greater than such
Certificates' fair market value. Any such interest of the Master Servicer or
such agent in the Certificates shall not be taken into account when evaluating
whether actions of the Master Servicer are consistent with its obligations in
accordance with the Servicing Standard regardless of whether such actions may
have the effect of benefiting the Class or Classes of Certificates owned by the
Master Servicer.
SECTION 8.6 MAINTENANCE OF HAZARD INSURANCE, OTHER INSURANCE, TAXES
AND OTHER. Subject to the limitations set forth below, the Master Servicer shall
use reasonable efforts consistent with the Servicing Standard to cause the
related Mortgagor to maintain for each Mortgage Loan (other than any REO
Mortgage Loan), and if the related Mortgagor does not so maintain, the Master
Servicer shall cause to be maintained with a Qualified Insurer, (A) a Standard
Hazard Insurance Policy which does not provide for reduction due to depreciation
in an amount that is at least equal to the lesser of (i) the full replacement
cost of improvements securing such Mortgage Loan or (ii) the outstanding
principal balance of such REO Mortgage Loan, but, in any event, in an amount
sufficient to avoid the application of any co-insurance clause and (B) any other
insurance coverage for a Mortgage Loan which the related Mortgagor is required
to maintain under the related Mortgage, provided the Master Servicer shall not
be required to maintain earthquake insurance on any Mortgaged Property unless
such insurance was required at origination and is available at commercially
reasonable rates; provided, however, that the Special Servicer shall have the
right, but not the duty, to obtain, at its own expense, earthquake insurance on
any Mortgaged Property.
Each Standard Hazard Insurance Policy maintained with respect to any
Mortgaged Property that is not an REO Property shall contain, or have an
accompanying endorsement that contains, a standard mortgagee clause. If the
Mortgaged Property is located in a designated special flood hazard area by the
Federal Emergency Management Agency in the Federal Register, as amended from
time to time (to the extent permitted under the related Mortgage Loan or as
required by law), the Master Servicer (with respect to any Mortgaged Property
that is not an REO Property) shall cause flood insurance to be maintained. Such
flood insurance shall be in an amount equal to the lesser of (i) the unpaid
principal balance of the related Mortgage Loan or (ii) the maximum amount of
such insurance available for the related Mortgaged Property under the national
flood insurance program, if the area in which such Mortgaged Property is located
is participating in such program. Any amounts collected by the Master Servicer
under any such policies (other than amounts to be applied to the restoration or
repair of the related Mortgaged Property or property thus acquired or amounts
released to the Mortgagor in accordance with the terms of the applicable
Mortgage Loan) shall be deposited in the Certificate Account.
Any cost (such as insurance premiums and insurance broker fees but not
internal costs and expenses of obtaining such insurance) incurred by the Master
Servicer in maintaining any insurance pursuant to this Section 8.6 shall not,
for the purpose of calculating monthly distributions to the Certificateholders
or remittances to the Trustee for their benefit, be added to
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the principal balance of the Mortgage Loan, notwithstanding that the terms of
the Mortgage Loan so permit. Such costs shall be paid as a Servicing Advance by
the Master Servicer, subject to Section 4.4 hereof.
Notwithstanding the above, the Master Servicer shall have no
obligation beyond using its reasonable efforts consistent with the Servicing
Standard to enforce such insurance requirements. Furthermore, the Master
Servicer shall not be required in any event to maintain or obtain insurance
coverage beyond what is reasonably available at a cost customarily acceptable
and consistent with the Servicing Standard. The Master Servicer shall notify the
Trustee in the event it makes such determination.
The Master Servicer shall conclusively be deemed to have satisfied its
obligations as set forth in this Section 8.6 either (i) if the Master Servicer
shall have obtained and maintained a master force placed or blanket insurance
policy insuring against hazard losses on all of the applicable Mortgage Loans
serviced by it, it being understood and agreed that such policy may contain a
deductible clause on terms substantially equivalent to those commercially
available and maintained by comparable servicers consistent with the Servicing
Standard, and provided that such policy is issued by a Qualified Insurer with a
minimum claims paying ability rating of "A" (or an equivalent rating) from the
Rating Agencies or otherwise approved by the Rating Agencies or (ii) if the
Master Servicer, provided that its long-term rating is not less than "BBB" by
S&P and "BBB" by DCR, self-insures for its obligations as set forth in the first
paragraph of this Section 8.6. In the event that the Master Servicer shall cause
any Mortgage Loan to be covered by such a master force placed or blanket
insurance policy, the incremental cost of such insurance allocable to such
Mortgage Loan (i.e., other than any minimum or standby premium payable for such
policy whether or not any Mortgage Loan is then covered thereby), if not borne
by the related Mortgagor, shall be paid by the Master Servicer as a Servicing
Advance. If such policy contains a deductible clause, the Master Servicer shall,
if there shall not have been maintained on the related Mortgaged Property a
policy complying with this Section 8.6 and there shall have been a loss that
would have been covered by such policy, deposit in the Certificate Account the
amount not otherwise payable under such master force placed or blanket insurance
policy because of such deductible clause to the extent that such deductible
exceeds (i) the deductible under the related Mortgage Loan or (ii) if there is
no deductible limitation required under the Mortgage Loan, the deductible amount
with respect to insurance policies generally available on properties similar to
the related Mortgaged Property which is consistent with the Servicing Standard,
and deliver to the Trustee an Officer's Certificate describing the calculation
of such amount. In connection with its activities as administrator and servicer
of the Mortgage Loans, the Master Servicer agrees to present, on its behalf and
on behalf of the Trustee, claims under any such master force placed or blanket
insurance policy.
With respect to each Mortgage Loan, the Master Servicer shall maintain
accurate records with respect to each related Mortgaged Property reflecting the
status of taxes, assessments and other similar items that are or may become a
lien on the related Mortgaged Property and the status of insurance premiums
payable with respect thereto. From time to time, the Master Servicer (other than
with respect to REO Mortgage Loans) shall (i) obtain all bills for the payment
of such items (including renewal premiums), and (ii) effect payment of all such
bills, taxes and other assessments with respect to such Mortgaged Properties
prior to the applicable penalty or termination date, in each case employing for
such purpose Escrow
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Amounts as allowed under the terms of the related Mortgage Loan. If a Mortgagor
fails to make any such payment on a timely basis or collections from the
Mortgagor are insufficient to pay any such item before the applicable penalty or
termination date, the Master Servicer in accordance with the Servicing Standard
shall use its reasonable efforts to pay as a Servicing Advance the amount
necessary to effect the payment of any such item, subject to Section 4.4 hereof.
No costs incurred by the Master Servicer, the Trustee or the Fiscal Agent, as
the case may be, in effecting the payment of taxes and assessments on the
Mortgaged Properties and related insurance premiums shall, for the purpose of
calculating distributions to Certificateholders, be added to the principal
balance of the Mortgage Loans, notwithstanding that the terms of such Mortgage
Loans so permit.
SECTION 8.7 ENFORCEMENT OF DUE-ON-SALE CLAUSES; ASSUMPTION
AGREEMENTS.
(a) In the event the Master Servicer receives a request from a
Mortgagor pursuant to the provisions of any Mortgage Loan (other than a
Specially Serviced Mortgage Loan) that permits the one-time assignment of the
related Mortgaged Property to, and assumption of such Mortgage Loan by, another
Person, the Master Servicer shall obtain relevant information for purposes of
evaluating such request. If the Master Servicer recommends to approve such
assignment, the Master Servicer shall provide to the Special Servicer a copy of
such recommendation and the materials upon which such recommendation is based
and (A) the Special Servicer shall have the right hereunder to grant or withhold
consent to any such request for such assignment and assumption in accordance
with the terms of the Mortgage Loan and this Agreement, and the Special Servicer
shall not unreasonably withhold such consent, (B) failure of the Special
Servicer to notify the Master Servicer in writing, within three Business Days
following the Master Servicer's delivery of the recommendation described above,
of its determination to grant or withhold such consent shall be deemed to
constitute a grant of such consent and (C) the Master Servicer shall not permit
any such assignment or assumption unless it has received the written consent of
the Special Servicer or such consent has been deemed to have been granted as
described in the preceding sentence. Upon consent or deemed consent by the
Special Servicer to such proposed assignment and assumption, the Master Servicer
shall process such request of the related Mortgagor and shall be authorized to
enter into an assignment and assumption or substitution agreement with the
Person to whom the related Mortgaged Property has been or is proposed to be
conveyed, and/or release the original Mortgagor from liability under the related
Mortgage Loan and substitute as obligor thereunder the Person to whom the
related Mortgaged Property has been or is proposed to be conveyed; provided,
however, that the Master Servicer shall not enter into any such agreement to the
extent that any terms thereof would result in an Adverse REMIC Event or create
any lien on a Mortgaged Property that is senior to, or on parity with, the lien
of the related Mortgage. To the extent permitted by applicable law, the Master
Servicer shall not enter into such an assumption or substitution agreement
unless the credit status of the prospective new Mortgagor is in compliance with
the Master Servicer's regular commercial mortgage origination or servicing
standards and criteria. The Master Servicer shall notify the Trustee and the
Special Servicer of any assignment and assumption or substitution agreement
executed pursuant to this Section 8.7(a). The Master Servicer shall be entitled
to (as additional servicing compensation) 60% of any assumption fee collected
from a Mortgagor in connection with an assignment and assumption or substitution
executed pursuant to this Section 8.7(a) and the Special Servicer shall be
entitled to (as additional special servicing compensation) the other 40% of such
fee.
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(b) Other than with respect to the assignment and assumptions referred
to in subsection (a) above, if any Mortgage Loan that is not a Specially
Serviced 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 of the related
Mortgaged Property, or
(ii) provides that such Mortgage Loan may not be assumed without
the consent of the related mortgagee in connection with any such sale or
other transfer,
then, the Special Servicer, on behalf of the Trust, and not the Master Servicer,
shall either (i) enforce such due-on-sale clause or (ii) if it believes such
action would be in the best economic interest of the Trust, waive the effect of
such provision; provided, however, that if the Principal Balance of such
Mortgage Loan exceeds 5% of the Aggregate Principal Balances of all the Mortgage
Loans, then prior to waiving the effect of such provision, the Special Servicer
shall obtain Rating Agency Confirmation regarding such waiver. The Special
Servicer shall promptly forward copies of the assignment and assumption
documents relating to any Mortgage Loan to the Master Servicer and the Trustee,
and the Master Servicer shall promptly thereafter forward such documents to the
Rating Agencies. The Special Servicer shall be entitled to (as additional
special servicing compensation) 100% of any fee collected from a Mortgagor in
connection with the Special Servicer granting or withholding such consent.
(c) The Master Servicer shall have the right to consent to any
transfers of interest of a Mortgagor, to the extent such transfer is allowed
under the terms of the related Mortgage Loan, including any consent to transfer
to any subsidiary or affiliate of Mortgagor or to a person acquiring less than a
majority interest in the Mortgagor. The Master Servicer shall be entitled to
collect and receive from Mortgagors any customary fees in connection with such
transfers of interest as additional servicing compensation.
(d) The Trustee for the benefit of the Certificateholders shall
execute any necessary instruments in the form presented to it by the Master
Servicer (pursuant to subsection (a)) or the Special Servicer (pursuant to
subsection (b)) for such assignments and assumptions agreements. Upon the
closing of the transactions contemplated by such documents, the Master Servicer
shall cause the originals of the assignment and assumption agreement, the
release (if any), or the modification or supplement to the Mortgage Loan to be
delivered to the Trustee except to the extent such documents have been submitted
to the recording office, in which event the Master Servicer shall promptly
deliver copies of such documents to the Trustee and the Special Servicer.
SECTION 8.8 TRUSTEE TO COOPERATE; RELEASE OF TRUSTEE MORTGAGE FILES.
Upon the payment in full of any Mortgage Loan, satisfaction or discharge in full
of any Specially Serviced Mortgage Loan or the receipt by the Master Servicer of
a notification that payment in full (or such payment, if any, in connection with
the satisfaction and discharge in full of any Specially Serviced Mortgage Loan)
will be escrowed in a manner customary for such purposes, and upon notification
by the Master Servicer in the form of a certification (which certification shall
include a statement to the effect that all amounts received or to be received in
connection with such payment which are required to be deposited in the
Certificate Account have been or
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will be so deposited) of a Servicing Officer and a request for release of the
Trustee Mortgage File in the form of Exhibit C hereto the Trustee shall promptly
release the related Trustee Mortgage File to the Master Servicer and the Trustee
shall execute and deliver to the Master Servicer the deed of reconveyance or
release, satisfaction or assignment of mortgage or such instrument releasing the
lien of the Mortgage, as directed by the Master Servicer together with the
Mortgage Note with written evidence of cancellation thereon. The provisions of
the immediately preceding sentence shall not, in any manner, limit or impair the
right of the Master Servicer to execute and deliver, on behalf of the Trustee,
the Certificateholders or any of them, any and all instruments of satisfaction,
cancellation or assignment without recourse, representation or warranty, or of
partial or full release or discharge and all other comparable instruments, with
respect to the Mortgage Loans, and with respect to the Mortgaged Properties held
for the benefit of the Certificateholders. No expenses incurred in connection
with any instrument of satisfaction or deed of reconveyance shall be chargeable
to the Distribution Account but shall be paid by the Master Servicer except to
the extent that such expenses are paid by the related Mortgagor in a manner
consistent with the terms of the related Mortgage and applicable law. From time
to time and as shall be appropriate for the servicing of any Mortgage Loan,
including for such purpose, collection under any policy of flood insurance, any
Servicer Fidelity Bond or Errors or Omissions Policy, or for the purposes of
effecting a partial or total release of any Mortgaged Property from the lien of
the Mortgage or the making of any corrections to the Mortgage Note or the
Mortgage or any of the other documents included in the Trustee Mortgage File,
the Trustee shall, upon request of the Master Servicer and the delivery to the
Trustee of a Request for Release signed by a Servicing Officer, in the form of
Exhibit C hereto, release the Trustee Mortgage File to the Master Servicer or
the Special Servicer, as the case may be.
SECTION 8.9 DOCUMENTS, RECORDS AND FUNDS IN POSSESSION OF MASTER
SERVICER TO BE HELD FOR THE TRUSTEE FOR THE BENEFIT OF THE CERTIFICATEHOLDERS.
Notwithstanding any other provisions of this Agreement, the Master Servicer
shall transmit to the Trustee, to the extent required by this Agreement, all
documents and instruments coming into the possession of the Master Servicer from
time to time and shall account fully to the Trustee for any funds received or
otherwise collected thereby, including Liquidation Proceeds or Insurance
Proceeds in respect of any Mortgage Loan. All Servicer Mortgage Files and funds
collected or held by, or under the control of, the Master Servicer in respect of
any Mortgage Loans, whether from the collection of principal and interest
payments or from Liquidation Proceeds or Insurance Proceeds, including any funds
on deposit in the Certificate Account, shall be held by the Master Servicer 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 agrees that it shall not
create, incur or subject any Servicer Mortgage Files or Trustee Mortgage File or
any funds that are deposited in the Certificate Account or any Escrow 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 Servicer Mortgage Files or Trustee Mortgage File or any funds
collected on, or in connection with, a Mortgage Loan, except, however, that the
Master Servicer shall be entitled to receive from any such funds any amounts
that are properly due and payable to the Master Servicer 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 the Servicing Fee, which shall be payable by the Trust from
amounts held in the Certificate Account or otherwise collected from the Mortgage
Loans as provided in Section 5.2.
(b) Additional servicing compensation in the form of assumption fees,
extension fees, servicing fees, default interest payable at a rate above the
Mortgage Rate, Modification Fees, forbearance fees, Late Fees (net of Advance
Interest) or other usual and customary charges and fees actually received from
Mortgagors shall be retained by the Master Servicer, provided that the Master
Servicer shall be entitled to (i) receive 60% of assumption fees collected on
Mortgage Loans as provided in Section 8.7(a), (ii) Modification Fees as provided
in Section 8.18 hereof; and (iii) 100% of any extension fees collected from the
related Mortgagor in connection with the extension of the Maturity Date of any
Mortgage Loan as provided in Section 8.18; provided, however, that the Master
Servicer shall not be entitled to any such fees in connection with any Specially
Serviced Mortgage Loans. If the Master Servicer collects any amount payable to
the Special Servicer hereunder in connection with a REO Mortgage Loan or
Specially Serviced Mortgage Loan, the Master Servicer shall promptly remit such
amount to the Special Servicer as provided in Section 5.2. The Master Servicer
shall be required to pay all applicable expenses incurred by it in connection
with its servicing activities hereunder.
(c) Notwithstanding any other provision herein, the Servicing Fee for each
monthly period relating to each Determination Date shall be reduced by an amount
equal to the Compensating Interest (if any) for such Determination Date.
(d) The Master Servicer shall also be entitled to additional servicing
compensation of (i) an amount equal to the excess, if any, of the aggregate
Prepayment Interest Excess for each Distribution Date over the aggregate
Prepayment Interest Shortfalls for such Distribution Date, (ii) interest or
other income earned on deposits in the Certificate Account and the Distribution
Account (but only to the extent of the net investment earnings, if any, with
respect to each such account), and, (iii) to the extent not required to be paid
to any Mortgagor under applicable law, any interest or other income earned on
deposits in the Escrow Accounts.
SECTION 8.11 MASTER SERVICER REPORTS; ACCOUNT STATEMENTS.
(a) The Master Servicer shall deliver to the Trustee, no later than the
Report Date, the Master Servicer Remittance Report with respect to the related
Distribution Date. The Special Servicer is required to provide all information
relating to Specially Serviced Mortgage Loans in order for the Master Servicer
to satisfy its duties in this Section 8.11.
(b) The Master Servicer shall deliver to the Trustee and the Special
Servicer within 30 days following each Determination Date a statement setting
forth the status of the Certificate Account as of the close of business on such
Determination Date showing, for the period covered by such statement, the
aggregate of deposits in or withdrawals from the Certificate Account.
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(c) The Master Servicer shall promptly inform the Special Servicer of the
name, account number, location and other necessary information concerning the
Certificate Account in order to permit the Special Servicer to make deposits
therein.
(d) The Master Servicer shall deliver to the Rating Agencies, the Trustee,
the Special Servicer and the Depositor within 30 days after receipt any annual,
monthly or quarterly financial statements the Master Servicer receives from any
Mortgagor relating to the Mortgage Loans. Except as provided in Section 8.14,
the Master Servicer shall have no duty to conform or normalize any of the data
or information contained in such statements.
(e) The Master Servicer shall deliver a copy of any reports or information
delivered to the Trustee pursuant to subsection (a) or subsection (b) of this
Section 8.11 to the Depositor, the Special Servicer and each Rating Agency, in
each case upon request by such Person and only to the extent such reports and
information are not otherwise required to be delivered to such Person under any
provision of this Agreement.
SECTION 8.12 ANNUAL STATEMENT AS TO COMPLIANCE. The Master Servicer shall
deliver to the Depositor and the Trustee on or before the Report Date occurring
in March of each year, commencing in March 1999, an Officer's Certificate
stating, as to the signer thereof, that (A) a review of the activities of the
Master Servicer during the preceding calendar year or portion thereof and of the
performance of the Master Servicer 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 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
shall forward a copy of each such statement to the Rating Agencies.
SECTION 8.13 ANNUAL INDEPENDENT PUBLIC ACCOUNTANTS' SERVICING REPORT. On
or before the Report Date occurring in April of each year, commencing in April
1999, the Master Servicer shall cause a firm of nationally recognized
independent public accountants that is a member of the American Institute of
Certified Public Accountants to furnish a statement to the Depositor, the
Operating Adviser and the Trustee to the effect that such firm has examined
certain documents and records relating to the servicing of the Mortgage Loans
and that, on the basis of such examination conducted substantially in compliance
with the Uniform Single Attestation Program for Mortgage Bankers ("USAP") or the
Audit Program for Mortgages serviced for FHLMC (the "FHLMC Audit Program"), the
servicing for the preceding calendar year has been conducted in compliance with
such agreements except for such significant exceptions or errors in records
that, in the opinion of such firm, the USAP or FHLMC Audit Program require it to
report. The Master Servicer shall forward a copy of each such report to the
Rating Agencies.
SECTION 8.14 ANNUAL REPORTS REGARDING THE MORTGAGED PROPERTIES. Not later
than the Report Date occurring in June of each year, beginning in June 1999, the
Master Servicer shall deliver to the Trustee, the Placement Agents, the
Underwriters, the Rating Agencies, any Operating Adviser and the Depositor an
Annual Report for each Mortgage Loan, based on the most recently available
year-end financial statements and most recently available
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rent rolls of each applicable Mortgagor (to the extent provided to the Master
Servicer by or on behalf of each Mortgagor, or, in the case of Specially
Serviced Mortgaged Loans, as provided to the Special Servicer, which Special
Servicer shall forward such information to the Master Servicer on or before
April 15 of each such year), containing such information and analyses for each
Mortgage Loan as would customarily be included in accordance with the Servicing
Standard including, without limitation, Debt Service Coverage Ratios and income.
In addition, the Master Servicer shall provide to the Special Servicer, within
30 days following receipt thereof by the Master Servicer, copies of any
operating statements and rent rolls collected with respect to the Mortgaged
Properties. As and to the extent reasonably requested by the Special Servicer,
the Master Servicer shall make inquiry of any Mortgagor with respect to such
information or as regards the performance of the related Mortgage Property in
general. The Trustee shall send copies of such reports to any Certificateholder
and any Certificate Owner upon presentation of evidence satisfactory to the
Trustee of such Certificate Owner's beneficial ownership of a Certificate upon
written request.
SECTION 8.15 OTHER AVAILABLE INFORMATION AND CERTAIN RIGHTS OF THE MASTER
SERVICER.
(a) Subject to paragraphs (b), (c) and (d) below, the Master Servicer
shall make available at its offices primarily responsible for servicing the
Mortgage Loans, during normal business hours, upon reasonable advance written
notice for review by any Certificateholder, any Certificate Owner, any Placement
Agent, any Underwriter, each Rating Agency or the Depositor, originals or copies
of, among other things, the following items: (i) this Agreement and any
amendments thereto, (ii) all final and released Annual Reports and the Master
Servicer Remittance Reports, (iii) all Officer's Certificates (including
Officer's Certificates evidencing any determination of Nonrecoverable Advances)
delivered to the Trustee since the Closing Date, (iv) all accountants' reports
delivered to the Trustee since the Closing Date, (v) the most recent property
Inspection Reports in the possession of the Master Servicer in respect of each
Mortgaged Property, (vi) the most recent Mortgaged Property annual operating
statement and rent roll, if any, collected by or on behalf of the Master
Servicer or the Special Servicer, (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 (viii) any and all Officers' Certificates (and
attachments thereto) delivered to the Trustee to support the Master Servicer's
determination that any Advance was not or, if made, would not be, recoverable.
The Master Servicer will be permitted to require payment of a sum to be paid by
the requesting party (other than the Rating Agencies, the Trustee, Placement
Agents or Underwriters) sufficient to cover the reasonable costs and expenses of
making such information available.
(b) Subject to the restrictions described below, the Master Servicer shall
afford the Rating Agencies, the Depositor, the Trustee, the Fiscal Agent, the
Special Servicer, the Placement Agents, the Underwriters, the Operating Adviser,
any Certificateholder or Certificate Owner, upon reasonable notice and during
normal business hours, reasonable access to all information referred to in
Section 8.15(a) and any additional relevant, non-attorney-client-privileged
records and documentation regarding the applicable Mortgage Loans, REO Property
and all accounts, insurance policies and other relevant matters relating to this
Agreement, and access to Servicing Officers of the Master Servicer responsible
for its obligations hereunder. Copies of information or access will be provided
to Certificateholders and each Certificate
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Owner providing satisfactory evidence of ownership of Certificates or beneficial
ownership of a Certificate, as the case may be. 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 upon request; provided, however, that the
Master Servicer shall be permitted to require payment by the requesting party
(other than the Depositor, the Trustee, either Placement Agent, either
Underwriter, or any Rating Agency) of a sum sufficient to cover the reasonable
expenses actually incurred by the Master Servicer of providing access or copies
(including electronic or digital copies) of any such information requested in
accordance with the preceding sentence.
(c) Nothing herein shall be deemed to require the Master 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 Special Servicer or Mortgagor. Notwithstanding the above, the Master
Servicer shall not have any liability to the Depositor, the Trustee, the Special
Servicer, the Fiscal Agent, any Certificateholder, any Certificate Owner, either
Placement Agent, either Underwriter, any 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 (or any employee, attorney, officer, director or agent thereof),
the Trust (from amounts held in any account or otherwise) shall hold harmless
and indemnify the Master Servicer from any loss or expense (including attorney
fees) relating to or arising from such claims.
(d) The Master Servicer shall produce the reports required of it under
this Agreement; provided, however, that the Master Servicer shall not be
required to produce any ad hoc non-standard written reports with respect to such
Mortgage Loans. In the event the Master Servicer elects to provide such
non-standard reports, it may require the Person requesting such report (other
than a Rating Agency) to pay a reasonable fee to cover the costs of the
preparation thereof. Notwithstanding anything to the contrary herein, as a
condition to the Master Servicer making any report or information available upon
request to any Person other than the parties hereto, the Master Servicer may
require that the recipient of such information acknowledge that the Master
Servicer may contemporaneously provide such information to the Depositor, the
Trustee, the Special Servicer, either Placement Agent, any Underwriter, any
Rating Agency and/or the Certificateholders or Certificate Owners. Any
transmittal of information by the Master Servicer to any Person other than the
Trustee, the Master Servicer, the Special Servicer, the Rating Agencies or the
Depositor may be accompanied by a letter from the Master Servicer containing the
following provision:
"By receiving the information set forth herein, you hereby
acknowledge and agree that the United States securities laws
restrict any person who possesses material, non-public
information regarding the Trust which issued Morgan Stanley
Capital I Inc., Commercial Mortgage Pass-Through Certificates,
Series 1998-WF1 from purchasing or selling such Certificates
in circumstances where the other party to the transaction is
not also in possession of such information. You also
acknowledge and agree that such information is being provided
to you for the purpose of, and such information may be used
only in connection with, evaluation
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by you or another Certificateholder, Certificate Owner or
prospective purchaser of such Certificates or beneficial
interest therein."
(e) The Master Servicer may, at its discretion, make available by
electronic media and bulletin board service certain information and may make
available by electronic media or bulletin board service (in addition to making
such information available as provided herein) any reports or information
required by this Agreement that the Master Servicer is required to provide to
any of the Rating Agencies, the Depositor and anyone the Depositor reasonably
designates.
(f) The Master Servicer shall cooperate in providing the Rating Agencies
with such other pertinent information relating to the Mortgage Loans as is or
should be in their respective possession as the Rating Agencies may reasonably
request.
SECTION 8.16 RULE 144A INFORMATION. For so long as any of the Certificates
are "restricted securities" within the meaning of Rule 144A under the Securities
Act, the Master Servicer agrees to provide to the Trustee for delivery to any
Holder thereof, any Certificate Owner therein and to any prospective purchaser
of the Certificates or beneficial interest therein reasonably designated by the
Trustee, upon the request of such Certificateholder, such Certificate Owner or
the Trustee, subject to this Section 8.16 and the provisions of Section 8.15,
any information prepared by the Master Servicer that is required to be provided
to such holder or prospective purchaser 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 this Section 8.15(a) and (b).
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 the Certificates by such Person and the Master Servicer
shall be permitted to use the letter referred to in Section 8.15(e). Unless the
Master Servicer chooses to deliver the information directly, the Depositor, the
Placement Agents, the Underwriters or 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 making any report or information available
upon request to any Person other than the parties hereto, the Master Servicer
may require that the recipient of such information acknowledge that the Master
Servicer may contemporaneously provide such information to the Depositor, the
Trustee, either Placement Agent, the Underwriters, any Rating Agency and/or the
Certificateholders and Certificate Owners. The Master Servicer will be permitted
to require payment of a sum to be paid by the requesting party (other than the
Rating Agencies, the Trustee, Placement Agents or Underwriters) sufficient to
cover the reasonable costs and expenses of making such information available.
SECTION 8.17 INSPECTIONS. The Master Servicer shall, at its own expense,
inspect or cause to be inspected each Mortgaged Property other than Mortgaged
Properties related to Specially Serviced Mortgage Loans, every calendar year
beginning in 1999, or every second calendar year beginning in 1999 if the
principal balance of the related Mortgage Loan is under $2 million. The Master
Servicer shall prepare an Inspection Report relating to each inspection. The
Master Servicer shall promptly forward the applicable Inspection Report to the
Rating Agencies, the Placement Agents, the Underwriters, the Depositor, the
Trustee and the
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Special Servicer. The Special Servicer shall have the right to inspect or cause
to be inspected (at its own expense) every calendar year any Mortgaged Property
related to a Mortgage Loan that is not a Specially Serviced Mortgage Loan,
provided that the Special Servicer notifies the Master Servicer prior to such
inspection.
SECTION 8.18 MODIFICATIONS, WAIVERS, AMENDMENTS, EXTENSIONS AND CONSENTS.
Subject to the limitations of Section 12.3 hereof, the Master Servicer
shall have the following powers:
(a) (i) The Master Servicer in accordance with the Servicing Standard may
agree to any modification, waiver, amendment or consent of or relating to any
term other than a Money Term of a Mortgage Loan that is not a Specially Serviced
Mortgage Loan, provided that such amendment would not result in an Adverse REMIC
Event. Notwithstanding the preceding sentence, from and after the date on which
neither the Master Servicer nor an Affiliate of the Master Servicer has an
interest in any of the Class H, Class J, Class K or Class L Certificates, if any
such proposed modification, waiver, amendment or consent is deemed material by
the Master Servicer in its reasonable discretion and the Master Servicer
recommends to approve such modification, waiver, amendment or consent, the
Master Servicer shall provide to the Special Servicer a copy of the Master
Servicer's recommendation and the relevant information obtained or prepared by
the Master Servicer in connection therewith and (A) the Special Servicer shall
have the right hereunder to grant or withhold consent to any such proposed
modification, waiver, amendment or consent, and such consent of the Special
Servicer shall not be unreasonably withheld, consistent with the Servicing
Standard, (B) failure of the Special Servicer to notify the Master Servicer,
within three Business Days following the Master Servicer's delivery of the
recommendation described above, of its determination to grant or withhold such
consent shall be deemed to constitute a grant of such consent and (C) the Master
Servicer shall not enter into any such proposed modification, waiver, amendment
or consent unless it has received the written consent of the Special Servicer or
such consent has been deemed to have been granted as described above. In any
event, the Master Servicer shall promptly notify the Special Servicer of any
modification, waiver, amendment or consent executed by the Master Servicer
pursuant to this Section 8.18(a)(i) and provide to the Special Servicer a copy
thereof.
(ii) The Master Servicer may, without the consent of the Special
Servicer, 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, if in the Master Servicer's sole judgment
exercised in good faith (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 Master 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.
(b) The Master 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 Master Servicer a reasonable and
customary modification fee to the
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extent permitted by law. The Master Servicer may charge the Mortgagor for any
costs and expenses (including attorney's fees) incurred by the Master 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 Master 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).
(c) The Master Servicer 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
except to the extent such documents have been submitted to the applicable
recording office, in which event the Master Servicer shall promptly deliver
copies of such documents to the Trustee. The Master Servicer shall not agree to
any modification, waiver, or amendment of any Money Term of a Mortgage Loan or
any term of a Specially Serviced Mortgage Loan.
SECTION 8.19 SPECIALLY SERVICED MORTGAGE LOANS.
(a) The Master Servicer shall send a written notice to the Special
Servicer and the Trustee within two Business Days after becoming aware of a
Servicing Transfer Event with respect to a Mortgage Loan, which notice shall
identify the related Mortgage Loan and set forth in reasonable detail the nature
and relevant facts of such Servicing Transfer Event and shall be accompanied by
a copy of the Servicer Mortgage File.
(b) Prior to the transfer of the servicing of any Specially Serviced
Mortgage Loan to the Special Servicer, the Master Servicer shall notify the
related Mortgagor of such transfer in accordance with the Servicing Standard
(the form and substance of such notice shall be reasonably satisfactory to the
Special Servicer).
(c) Any calculations or reports prepared by the Master Servicer to the
extent they relate to Specially Serviced Mortgage Loans shall be based on
information supplied to the Master Servicer in writing by the Special Servicer
as provided hereby. The Master Servicer shall have no duty to investigate or
confirm the accuracy of any information provided to it by the Special Servicer
and shall have no liability for the inaccuracy of any of its reports due to the
inaccuracy of the information provided by the Special Servicer.
(d) On or prior to each Distribution Date, the Master Servicer shall
provide to the Special Servicer, in order for the Special Servicer to comply
with its obligations under this Agreement, such information (and in the form and
medium) as the Special Servicer may reasonably request in writing from time to
time, provided that (i) the Master Servicer shall not be required to produce any
ad hoc reports or incur any unusual expense or effort in connection therewith
and (ii) if the Master Servicer elects to provide such ad hoc reports, it may
require the Special Servicer to pay a reasonable fee to cover the costs of the
preparation thereof.
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SECTION 8.20 REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE MASTER
SERVICER.
(a) The Master Servicer hereby represents and warrants to and covenants
with the Trustee, as of the date hereof:
(i) the Master Servicer is duly organized, validly existing and in
good standing as a national banking association under the laws of the
United States, and shall be and thereafter remain, in compliance with the
laws of each State in which any Mortgaged Property is located to the
extent necessary to perform its obligations under this Agreement, except
where the failure to so qualify or comply would not adversely affect the
Master Servicer's ability to perform its obligations hereunder in
accordance with the terms of this Agreement;
(ii) 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 has been duly executed
and delivered by the Master Servicer; and this Agreement, assuming the due
authorization, execution and delivery thereof by the Depositor, the
Trustee, the Special Servicer and the Fiscal Agent, 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, to applicable bankruptcy, reorganization, insolvency,
moratorium, receivership and other similar laws affecting creditors'
rights generally as from time to time in effect, and to general principles
of equity (regardless of whether such enforceability is considered in a
proceeding in equity or at law);
(iii) the execution and delivery of this Agreement, the consummation
of the transactions contemplated hereby, and the fulfillment of or
compliance with the terms and conditions of this Agreement will not (1)
result in a breach of any term or provision of its charter or by-laws or
(2) 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 materially and adversely affects
its ability to perform its obligations under this Agreement;
(iv) no litigation is pending or, to the Master Servicer's
knowledge, threatened, against it, that would materially and adversely
affect the execution, delivery or enforceability of this Agreement or its
ability to service the Mortgage Loans or to perform any of its other
obligations hereunder in accordance with the terms hereof;
(v) no consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by it of, or compliance by it with, this Agreement, or the
consummation of the transactions contemplated hereby, or if any such
consent, approval, authorization or order is required, it has obtained the
same or will obtain the same prior to the time necessary to perform its
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obligations under this Agreement, and, except to the extent in the case of
performance, that its failure to be qualified as a foreign corporation or
licensed in one or more states is not necessary for the performance by it
of its obligations hereunder; and
(vi) the performance of the services by the Master Servicer
contemplated by this Agreement are in the ordinary course of business of
the Master Servicer.
(b) It is understood that the representations and warranties set forth in
this Section 8.20 shall survive the execution and delivery of this Agreement.
(c) Any cause of action against the Master Servicer arising out of the
breach of any representations and warranties made in this Section shall accrue
upon discovery of such breach by any of the Trustee or the Master Servicer. The
Master Servicer shall give prompt notice to the Trustee, the Depositor and the
Special Servicer of the occurrence, or the failure to occur, of any event that,
with notice or the passage of time or both, would cause any representation or
warranty in this Section to be untrue or inaccurate in any respect.
SECTION 8.21 MERGER OR CONSOLIDATION. Any Person into which the Master
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
shall be a party, or any Person succeeding to the business of the Master
Servicer, shall be the successor of the Master Servicer hereunder, without the
execution or filing of any paper or any further act on the part of any of the
parties hereto; provided, however, that each of the Rating Agencies provides
written acknowledgment that its rating of the Certificates in effect immediately
prior to such merger, consolidation, or succession will not be qualified or
reduced as a result of such merger, consolidation or succession. If the
conditions to the provisions in the foregoing sentence are not met, the Trustee
may terminate the Master Servicer's servicing of the Mortgage Loans pursuant
hereto, such termination to be effected in the manner set forth in Sections 8.28
and 8.29.
SECTION 8.22 RESIGNATION OF MASTER SERVICER.
(a) Except as otherwise provided in Section 8.22(b) hereof, the Master
Servicer shall not resign from the obligations and duties hereby imposed on it
unless it determines that the Master Servicer's 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. Any such
determination permitting the resignation of the Master 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 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 to the Trustee.
(b) The Master Servicer may 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 Master Servicer on substantially the same terms
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and conditions, and for not more than equivalent compensation to that herein
provided; (ii) the Master Servicer 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 8.23 ASSIGNMENT OR DELEGATION OF DUTIES BY MASTER SERVICER. The
Master Servicer shall have the right without the prior written consent of the
Trustee to (A) delegate or subcontract with or authorize or appoint anyone, or
delegate certain duties to other professionals such as attorneys and appraisers,
as an agent of the Master Servicer or Sub-Servicers (as provided in Section 8.4)
to perform and carry out any duties, covenants or obligations to be performed
and carried out by the Master Servicer hereunder or (B) assign and delegate all
of its duties hereunder; provided, however, that with respect to clause (B), (i)
the Master Servicer gives the Depositor, the Special Servicer 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, 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) such assignment and delegation is the
subject of a Rating Agency Confirmation; 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 subclause (B) of this Section, the Master Servicer shall be released from its
obligations under this Agreement, except that the Master Servicer shall remain
liable for all liabilities and obligations incurred by it as the Master Servicer
hereunder prior to the satisfaction of the conditions to such assignment set
forth in the preceding sentence. Notwithstanding the above, the Master Servicer
may appoint Sub-Servicers in accordance with Section 8.4 hereof.
SECTION 8.24 LIMITATION ON LIABILITY OF THE MASTER SERVICER AND OTHERS.
(a) Neither the Master Servicer nor any of the directors, officers,
employees or agents of the Master Servicer shall be under any liability to the
holders of the Certificates, the Depositor, the Trustee, the Placement Agents,
the Underwriters, the Fiscal Agent, or the Special Servicer for any action taken
or for refraining from the taking of any action in good faith, or using
reasonable business judgment, consistent with the Servicing Standard; provided
that this provision shall not protect the Master Servicer or any such person
against any breach of a representation or warranty contained herein or any
liability which would otherwise be imposed by reason of willful misfeasance, bad
faith or negligence in its performance of duties under the Agreement or by
reason of negligent disregard of obligations and duties hereunder. The Master
Servicer and any director, officer, employee or agent of the Master Servicer may
rely in good faith on any document of any kind prima facie properly executed and
submitted by any Person (including, without limitation, the Special Servicer)
respecting any matters arising hereunder. The Master Servicer shall not be under
any obligation to appear in, prosecute or defend any legal action which is not
incidental to its duties to service the Mortgage Loans in accordance with this
Agreement; provided that the Master Servicer may in its sole discretion
undertake any such action which it may reasonably deem necessary or desirable in
order to protect the interests of the Certificateholders and the Trustee in the
Mortgage Loans (subject to the Special Servicer's servicing of Specially
Serviced Mortgage Loans as contemplated herein), or shall undertake any
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such action if instructed to do so by the Trustee. In such event, all legal
expenses and costs of such action shall be expenses and costs of the Trust, and
the Master Servicer shall be entitled to be reimbursed therefor as Servicing
Advances as provided by Section 5.2, subject to the provisions of Section 4.4
hereof.
(b) In addition, the Master Servicer shall have no liability with respect
to, and shall be entitled to conclusively rely on as to the truth of the
statements and the correctness of the opinions expressed in any certificates or
opinions furnished to the Master Servicer and conforming to the requirements of
this Agreement. Subject to the Servicing Standard, the Master Servicer shall
have the right to rely on information provided to it by the Special Servicer and
Mortgagors, and will have no duty to investigate or verify the accuracy thereof.
Neither the Master Servicer, nor any director, officer, employee, agent or
Affiliate, shall be personally liable for any error of judgement made in good
faith by any officer, unless it shall be proved that the Master Servicer or such
officer was negligent in ascertaining the pertinent facts. Neither the Master
Servicer nor any director, officer, employee, agent or Affiliate, shall be
personally liable for any action taken, suffered or omitted by it in good faith
and believed by it to be authorized or within the discretion, rights or powers
conferred upon it by this Agreement.
(c) The Master Servicer shall not be obligated to incur any liabilities,
costs, charges, fees or other expenses which relate to or arise from any breach
of any representation, warranty or covenant made by the Depositor, the Special
Servicer, the Fiscal Agent or Trustee in this Agreement. The Trust shall
indemnify and hold harmless the Master Servicer from any and all claims,
liabilities, costs, charges, fees or other expenses which relate to or arise
from any such breach of representation, warranty or covenant to the extent the
Master Servicer is unable to recover such amounts from the Person in breach.
(d) Except as otherwise specifically provided herein:
(i) the Master Servicer 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, appraisal, bond or other
paper or document reasonably believed or in good faith believed by it to
be genuine and to have been signed or presented by the proper party or
parties;
(ii) the Master Servicer may consult with counsel, and any written
advice or Opinion of Counsel shall be full and complete authorization and
protection with respect to any action taken or suffered or omitted by it
hereunder in good faith and in accordance with such advice or Opinion of
Counsel;
(iii) the Master Servicer shall not be personally liable for any
action taken, suffered or omitted by it in good faith and believed by it
to be authorized or within the discretion, rights or powers conferred upon
it by this Agreement; and
(iv) the Master Servicer, in preparing any reports hereunder, may
rely, and shall be protected in acting or refraining from acting upon any
information (financial or other), statement, certificate, document,
agreement, covenant, notice, request or other
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paper reasonably believed by it to be genuine and provided by any
Mortgagor or manager of a Mortgaged Property.
The Master Servicer and any director, officer, employee or agent of
the Master Servicer shall be indemnified by the Trustee, the Fiscal Agent and
the Special Servicer, as the case may be, and held harmless against any loss,
liability or expense including reasonable attorneys' fees incurred in connection
with any legal action relating to the Trustee's, the Fiscal Agent's or the
Special Servicer's, as the case may be, respective willful misfeasance, bad
faith or negligence in the performance of its respective duties hereunder or by
reason of reckless disregard of its respective duties hereunder, other than any
loss, liability or expense incurred by reason of willful misfeasance, bad faith
or negligence in the performance of any of the Master Servicer's duties
hereunder or by reason of negligent disregard of the Master Servicer's
obligations and duties hereunder. The Master Servicer shall immediately notify
the Trustee if a claim is made by a third party with respect to this Agreement
or the Mortgage Loans entitling the Master Servicer to indemnification
hereunder, whereupon the Trustee may assume the defense of any such claim (with
counsel reasonably satisfactory to the Master Servicer) and pay all expenses in
connection therewith, including counsel fees, and promptly pay, discharge and
satisfy and judgment or decree which may be entered against it or them in
respect of such claim. Any failure to so notify the Trustee shall not affect any
rights the Master Servicer or the Trust may have to indemnification under this
Agreement or otherwise, unless the Trustee's defense of such claim is materially
prejudiced thereby. Such indemnity shall survive the termination of this
Agreement or the resignation or removal of the Master Servicer hereunder. Any
payment hereunder made by the Trustee or the Fiscal Agent pursuant to this
paragraph to the Master Servicer shall be paid from the Trustee's or Fiscal
Agent's own funds, without reimbursement from the Trust therefor except achieved
through subrogation as provided in this Agreement. Any expenses incurred or
indemnification payments made by the Trustee or the Fiscal Agent shall be
reimbursed by the party so paid, if a court of competent jurisdiction makes a
final judgment that the conduct of the Trustee or the Fiscal Agent was not
culpable or found to have acted with willful misfeasance, bad faith or
negligence.
SECTION 8.25 INDEMNIFICATION; THIRD-PARTY CLAIMS.
(a) The Master Servicer and any director, officer, employee or agent
of the Master Servicer 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, any
Mortgage Loans, any REO Property or the Certificates or any exercise of any
right under this Agreement reasonably requiring the use of counsel or the
incurring of expenses other than any loss, liability or expense incurred by
reason of the Master Servicer's willful misfeasance, bad faith or negligence in
the performance of duties hereunder. The Master Servicer shall promptly notify
the Trustee if a claim is made by a third party with respect to this Agreement
or the Mortgage Loans entitling the Master Servicer 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) and out of the Trust pay all expenses in connection therewith,
including counsel fees, and out of the Trust promptly pay, discharge and satisfy
any judgment or decree which may be entered against it or them in respect of
such claim. Any failure to so notify the Trustee shall not affect any rights the
Master Servicer may have to
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indemnification under this Agreement or otherwise, unless the Trust is
prejudiced thereby. The indemnification provided herein shall survive the
termination of this Agreement. The Trustee or the Master Servicer shall promptly
make from the Certificate Account any payments certified by the Master Servicer
to the Trustee as required to be made to the Master Servicer pursuant to this
Section 8.25.
(b) The Master Servicer agrees to indemnify the Trustee, the Fiscal Agent,
the Special Servicer, the Trust, the Depositor, and any director, officer,
employee, agent or Controlling Person 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 the Trustee, the Fiscal Agent, the Special Servicer, the Depositor, and the
Trust may sustain arising from or as a result of the willful misfeasance, bad
faith or negligence in the performance of any of the Master Servicer's duties
hereunder or by reason of negligent disregard of the Master Servicer's
obligations and duties hereunder (including a breach of such obligations a
substantial motive of which is to obtain an economic advantage from being
released from such obligations), and if in any such situation the Master
Servicer is replaced, the parties hereto agree that the amount of such claims,
losses, penalties, fines, legal fees and related costs, judgments, and other
costs, liabilities, fees and expenses shall at least equal the incremental
costs, if any, of retaining a successor servicer. The Trustee, the Special
Servicer, the Depositor, or the Fiscal Agent, as applicable, shall immediately
notify the Master Servicer if a claim is made by any Person with respect to this
Agreement or the Mortgage Loans entitling the Trustee, the Depositor, the
Special Servicer, the Trust or the Fiscal Agent to indemnification under this
Section 8.25(b), whereupon the Master Servicer shall assume the defense of any
such claim (with counsel reasonably satisfactory to the Trustee, the Special
Servicer, the Depositor, or the Fiscal Agent, as applicable) and pay all
expenses in connection therewith, including counsel fees, and promptly pay,
discharge and satisfy any judgment or decree which may be entered against it or
them in respect of such claim. Any failure to so notify the Master Servicer
shall not affect any rights the Trustee, the Fiscal Agent, the Special Servicer,
the Depositor, or the Trust may have to indemnification under this Agreement or
otherwise, unless the Master 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 Master
Servicer, the Special Servicer, the Trustee and the Fiscal Agent. Any expenses
incurred or indemnification payments made by the Master Servicer shall be
reimbursed by the party so paid, if a court of competent jurisdiction makes a
final, non-appealable judgment that the conduct of the Master Servicer was not
culpable or that the Master Servicer did not act with willful misfeasance, bad
faith or negligence.
(c) The Master Servicer shall indemnify and hold harmless the Trust, the
Trustee, the Fiscal Agent each of their respective directors, each of their
respective officers, employees, agents and any Controlling Person of the Fiscal
Agent or the Trustee from and against any loss, claim, damage or liability,
joint or several, or any action in respect thereof, to which the Trust, the
Trustee, the Fiscal Agent, or any such director, officer, employees, agents or
such Controlling Person may become subject, under the 1933 Act or otherwise,
insofar as such loss, claim, damage, liability or action arises out of, or is
based upon, any untrue statement of a material fact contained in the Prospectus
Supplement or in the Private Placement Memorandum, or arises out of, or is based
upon the omission to state therein a material fact necessary to make the
statements therein not misleading, and shall reimburse the Trust, the Fiscal
Agent or Trustee
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or any such director, officer, employee, agent or Controlling Person for any
legal and other expenses reasonably incurred by the Trust, the Trustee, the
Fiscal Agent or any such director, officer, employee, agent or Controlling
Person in investigating or defending or preparing to defend against any such
loss, claim, damage, liability or action, but in each case only to the extent
that the untrue statement or omission was made in reliance upon and in
conformity with written information concerning the Master Servicer furnished to
the Depositor by or on behalf of the Master Servicer specifically for inclusion
therein. The Fiscal Agent or the Trustee, as applicable, shall immediately
notify the Master Servicer if a claim is made by a third party with respect to
this Section 8.25(c) entitling the Trust, the Fiscal Agent or the Trustee, or
any of their respective directors, officers, employees, agents or Controlling
Persons, 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 Fiscal Agent or the Trustee, as the case may be) and pay all
expenses in connection therewith, including counsel fees, and promptly pay,
discharge and satisfy any judgment or decree which may be entered against it or
them in respect of such claim. Any failure to so notify the Master Servicer
shall not affect any rights the Trust, the Fiscal Agent and the Trustee may have
to indemnification under this Section 8.25(c), unless the Master 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 Master Servicer, the Fiscal Agent and the
Trustee.
(d) The parties expressly agree that the only written information
concerning the Master Servicer furnished by or on behalf of the Master Servicer
for inclusion in the Prospectus Supplement is the information set forth under
the paragraphs under the caption "SERVICING OF THE MORTGAGE LOANS -- The Master
Servicer" on page S-76 and under the caption "DESCRIPTION OF THE MORTGAGE POOL -
The Sellers - Wells Fargo" on page S-71 of the Prospectus Supplement.
SECTION 8.26 EXCHANGE ACT REPORTING. The Master Servicer, the Special
Servicer, the Trustee and the Fiscal Agent shall reasonably cooperate with the
Depositor in connection with the Depositor's satisfying the reporting
requirements in respect of the Trust under the Exchange Act. The Trustee shall
prepare and file on behalf of the Depositor periodic reports with respect to the
Trust as required by the Exchange Act and the Rules and Regulations of the
Securities and Exchange Commission thereunder; provided that such items shall
have been received by the Trustee (to the extent not generated by the Trustee)
in the format required for electronic filing via the EDGAR system; and provided,
further, that any such items that are required to be delivered by the Master
Servicer, the Special Servicer, the Depositor or any other Person to the Trustee
shall be so delivered in the format required for electronic filing via the EDGAR
system (in addition to any other required format). The Trustee shall have no
responsibility to file any such items that have not been received in such
EDGAR-compatible format nor shall it have any responsibility to convert any
items to such format. The Depositor shall seek from the Securities and Exchange
Commission a no-action letter or other exemptive relief relating to reduced
reporting requirements in respect of the Trust under the Exchange Act and shall,
in accordance with and to the extent permitted by applicable law, file a Form 15
relating to the automatic termination of reporting in respect of the Trust under
the Exchange Act.
SECTION 8.27 COMPLIANCE WITH REMIC PROVISIONS. The Master Servicer shall
act in accordance with this Agreement and the REMIC Provisions and related
provisions of
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the Code in order to create or maintain the status of the three REMICs as REMICs
under the Code. The Master Servicer shall use its best efforts to take no action
or cause any REMIC to take any action that could (i) endanger the status of any
REMIC as a REMIC under the Code or (ii) result in the imposition of a tax upon
any REMIC (including, but not limited to, the tax on prohibited transactions as
defined in Code Section 860F(a)(2) or on prohibited contributions pursuant to
Section 860G(d)).
SECTION 8.28 TERMINATION.
(a) The obligations and responsibilities of the Master Servicer created
hereby (other than the obligation of the Master Servicer to make payments to the
Trustee as set forth in Section 8.29 and the obligations of the Master Servicer
to the Trustee, the Trust and the Fiscal Agent) shall terminate on the date
which is (i) the later of (A) the final payment or other liquidation of the last
Mortgage Loan remaining outstanding or (B) the disposition of all REO Property,
(ii) if an Event of Default described in clauses 8.28(b)(ii), (iii) and (iv) has
occurred, 60 days following the date on which the Trustee or Depositor gives
written notice to the Master Servicer that the Master Servicer is terminated or
(iii) if an Event of Default described in clauses 8.26(b)(i), (v), (vi) and
(vii) immediately upon the date on which the Trustee or the Depositor gives
written notice to the Master Servicer that the Master Servicer is terminated.
(b) "Event of Default," wherever used herein, means any one of the
following events:
(i) any failure by the Master Servicer to remit to the Trustee any
payment required to be remitted by the Master Servicer under the terms of
this Agreement, including any required Advances; or
(ii) any failure on the part of the Master Servicer duly to observe
or perform in any material respect any other of the duties, covenants or
agreements on the part of the Master Servicer contained in this Agreement
which continues unremedied for a period of 30 days after the date on which
written notice of such failure, requiring the same to be remedied, shall
have been given to the Master Servicer by the Depositor or the Trustee;
provided, however, that if the Master Servicer certifies to the Trustee
and the Depositor that the Master Servicer is in good faith attempting to
remedy such failure, such cure period will be extended to the extent
necessary to permit the Master Servicer to cure such failure; provided,
however that such cure period may not exceed 90 days; or
(iii) any breach of the representations and warranties contained in
Section 8.20 hereof that materially and adversely affects the interest of
any holder of any Class of Certificateholders and that 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 by the Depositor or the Trustee, provided, however, that
if the Master Servicer certifies to the Trustee and the Depositor that the
Master Servicer is in good faith attempting to remedy such breach, such
cure period will be extended to the extent necessary to permit the Master
Servicer to cure such breach; provided, however that such cure period may
not exceed 90 days; or
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(iv) the Trustee shall receive notice from any Rating Agency to the
effect that the continuation of the Master 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; or
(v) a decree or order of a court or agency or supervisory authority
having jurisdiction in the premises in an involuntary case under any
present or future federal or state bankruptcy, insolvency or similar law
for the appointment of a conservator, receiver, liquidator, trustee or
similar official in any bankruptcy, insolvency, readjustment of debt,
marshalling of assets and liabilities or similar proceedings, or for the
winding-up or liquidation of its affairs, shall have been entered against
the Master Servicer and such decree or order shall have remained in force
undischarged or unstayed for a period of 60 days; or
(vi) the Master Servicer shall consent to the appointment of a
conservator, receiver, liquidator, trustee or similar official in any
bankruptcy, insolvency, readjustment of debt, marshalling of assets and
liabilities or similar proceedings relating to the Master Servicer or
relating to all or substantially all of its property; or
(vii) the Master Servicer shall admit in writing its inability to
pay its debts generally as they become due, file a petition to take
advantage of any applicable 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.
SECTION 8.29 PROCEDURE UPON TERMINATION.
(a) Notice of any termination pursuant to clause (i) of Section
8.28(a), specifying the Master Servicer Remittance Date upon which the final
transfer by the Master Servicer to the Trustee shall be made, shall be given
promptly in writing by the Master Servicer to the Trustee no later than the
later of (i) five Business Days after the final payment or other liquidation of
the last Mortgage Loan or (ii) the sixth day of the month of such final
distribution. Upon any such termination, the duties of the Master Servicer
(other than the obligation of the Master Servicer to pay to the Trustee the
amounts remaining in the Certificate Account as set forth below and the
obligations of the Master Servicer to the Trustee, the Trust and the Fiscal
Agent as provided herein) shall terminate and the Master Servicer shall transfer
to the Trustee the amounts remaining in the Certificate Account after making the
withdrawals permitted to be made pursuant to Section 5.2 and shall thereafter
terminate the Certificate Account and any other account or fund maintained with
respect to the Mortgage Loans.
(b) On the date specified in a written notice of termination given
to the Master Servicer pursuant to clause (ii) of Section 8.28(a), all
authority, power and rights of the Master Servicer under this Agreement, whether
with respect to the Mortgage Loans or otherwise, shall terminate; provided that
in no event shall the termination of the Master Servicer be effective until a
successor servicer shall have succeeded the Master Servicer as successor
servicer, notified the Master Servicer of such designation, and such successor
servicer shall have assumed the Servicer's obligations and responsibilities, as
set forth in an agreement substantially in the form
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hereof, with respect to the Mortgage Loans. Except as provided in the next
sentence, the Trustee may not succeed the Master Servicer as servicer until and
unless it has satisfied the provisions that would apply to a Person succeeding
to the business of the Master Servicer pursuant to Section 8.22(b) hereof.
Notwithstanding the foregoing sentence, in the event that the Master Servicer is
terminated as a result of an event described in Section 8.28(b)(v), 8.28(b)(vi)
or 8.28(b)(vii), the Trustee shall act as successor servicer immediately upon
delivery of a notice of termination to the Master Servicer and shall use its
best efforts within 90 days of assuming the duties of the Servicer, either to
satisfy the conditions of Section 8.22(b) hereof or to transfer the duties of
the Master Servicer to a successor servicer who has satisfied such conditions.
The Trustee is hereby authorized and empowered to execute and deliver, on behalf
of the Master Servicer, 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 agrees to
cooperate with the Trustee and the Fiscal Agent in effecting the termination of
the Master Servicer's responsibilities and rights hereunder as Master Servicer
including, without limitation, notifying Mortgagors of the assignment of the
servicing function and providing the Trustee all documents and records in
electronic or other form reasonably requested by it to enable the successor
servicer designated by the Trustee to assume the Master Servicer's functions
hereunder and to effect the transfer to such successor for administration by it
of all amounts which shall at the time be or should have been deposited by the
Master Servicer in the Certificate Account and any other account or fund
maintained or thereafter received with respect to the Mortgage Loans.
ARTICLE IX
ADMINISTRATION AND SERVICING OF
SPECIALLY SERVICED MORTGAGE LOANS BY SPECIAL SERVICER
SECTION 9.1 DUTIES OF SPECIAL SERVICER.
(a) For and on behalf of the Certificateholders and the Trustee, the
Special Servicer shall service the Specially Serviced Mortgage Loans and manage
the related REO Properties in accordance with the provisions of this Agreement
and the Servicing Standard.
(b) The Special Servicer shall cooperate with the Master Servicer and
provide the Master Servicer with the information reasonably requested by the
Master Servicer, in writing, to the extent required to allow the Master Servicer
to perform its servicing obligations with respect to the Specially Serviced
Mortgage Loans hereunder; provided, however, that (i) the Special Servicer shall
not be required to produce any ad hoc reports or incur any unusual expense or
effort in connection therewith and (ii) if the Special Servicer elects to
provide such ad hoc reports, the Special Servicer may require the Master
Servicer to pay a reasonable fee to cover the costs of the preparation thereof.
The Special Servicer's obligations with respect to the servicing of any
Specially Serviced Mortgage Loan and any related REO Properties shall terminate
when such Specially Serviced Mortgage Loan has become a Rehabilitated Mortgage
Loan, unless and until another Servicing Transfer Event with respect to such
Rehabilitated Mortgage Loan occurs.
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(c) The Special Servicer shall send a written notice to the Master
Servicer and the Trustee within two Business Days (or sooner, if required by the
Servicing Standard) after becoming aware that a Mortgage Loan has become a
Rehabilitated Mortgage Loan, which notice shall identify the applicable Mortgage
Loan. Upon the receipt of such notice by the Master Servicer and the Trustee,
such Mortgage Loan shall become a Rehabilitated Mortgage Loan and will be
serviced by the Master Servicer.
(d) Upon the occurrence of a Servicing Transfer Event with respect to a
Mortgage Loan and upon the reasonable request of the Special Servicer, the
Master Servicer shall mark its records for such Mortgage Loan to cause any
monthly statements for amounts due on such Mortgage Loan to be sent thereafter
to the Special Servicer rather than the related Mortgagor. Upon receipt of any
such monthly statement, the Special Servicer shall, within two Business Days,
advise the Master Servicer of any changes to be made, and return the monthly
statement to the Master Servicer. The Master Servicer shall thereafter promptly
send the corrected monthly statement to the Mortgagor. If a Mortgage Loan
becomes a Rehabilitated Mortgage Loan, the Master Servicer shall send the
monthly statement to the Mortgagor as it did before such Mortgage Loan became a
Specially Serviced Mortgage Loan.
(e) All amounts collected by the Master Servicer with respect to a
Specially Serviced Mortgage Loan (other than a Mortgage Loan that has become an
REO Property) shall be deposited in the Certificate Account. The Master Servicer
shall within three Business Days after receipt of any such payment, notify the
Special Servicer of the receipt of such payment and the amount thereof. The
Special Servicer shall, within one Business Day thereafter, instruct the Master
Servicer in writing how to apply such payment.
SECTION 9.2 FIDELITY BOND AND ERRORS AND OMISSIONS INSURANCE POLICY OF
SPECIAL SERVICER. The Special Servicer, at its expense, shall maintain in effect
a Servicer Fidelity Bond and a Servicer Errors and Omissions Insurance Policy.
The Servicer Errors and Omissions Insurance Policy and Servicer Fidelity Bond
shall be issued by a Qualified Insurer (unless the Special Servicer self insures
as provided below) and be in form and amount consistent with the Servicing
Standard. In the event that any such Servicer Errors and Omissions Insurance
Policy or Servicer Fidelity Bond ceases to be in effect, the Special Servicer
shall obtain a comparable replacement policy or bond from an insurer or issuer
meeting the requirements set forth above as of the date of such replacement. So
long as the long-term rating of the Special Servicer is not less than two rating
categories (ignoring pluses or minuses) lower than the highest rating of the
Certificates, but in any event not less than "BBB" as rated by S&P and "BBB" as
rated by DCR, the Special Servicer may self-insure for the Servicer Fidelity
Bond and the Servicer Error and Omissions Insurance Policy.
SECTION 9.3 SUB-SERVICERS. The Special Servicer shall have the right to
use a Sub-Servicer on the same terms and conditions as those set forth in
Section 8.4 for a Sub-Servicer of the Master Servicer. The Special Servicer
shall notify the Master Servicer and Trustee of the appointment of any
Sub-Servicer of the Special Servicer.
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SECTION 9.4 SPECIAL SERVICER GENERAL POWERS AND DUTIES.
(a) Subject to the other terms and provisions of this Agreement, the
Special Servicer is hereby authorized and empowered when the Special Servicer
believes it appropriate in accordance with the Servicing Standard, to take any
and all the actions with respect to Specially Serviced Mortgage Loans which the
Master Servicer may perform as set forth in Section 8.3(a), including (i) to
execute and deliver, on behalf of itself or the Trust, any and all instruments
of satisfaction or cancellation, or of partial or full release or discharge and
all other comparable instruments, with respect to the Specially Serviced
Mortgage Loans and with respect to the related REO Properties and (ii) to
effectuate foreclosure or other conversion of the ownership of any REO Property
securing a Mortgage Loan. The Trustee shall execute on the Closing Date a Power
of Attorney in the form of Exhibit S-2 hereto and shall furnish the Special
Servicer from time to time, upon request, with any additional powers of attorney
of the Trust, empowering the Special Servicer to take such actions as it
determines to be reasonably necessary to comply with its servicing,
administrative and management duties hereunder, and the Trustee shall execute
and deliver or cause to be executed and delivered such other documents as a
Special Servicing Officer may request, that are necessary or appropriate to
enable the Special Servicer to service, administer and manage the Specially
Serviced Mortgage Loans and carry out its duties hereunder, in each case as the
Special Servicer determines is in accordance with the Servicing Standard and the
terms of this Agreement; provided, that, prior to initiating any proceedings in
any court of law or equity (but not defending any proceedings in any court of
law or equity) or instituting any proceeding to foreclose on any Mortgaged
Property in the name of the Trust in any state, the Special Servicer shall
notify the Trustee in writing and not institute or initiate any such proceedings
for a period of five Business Days from the date of its delivery of such notice
to the Trustee, unless the Special Servicer reasonably believes that such action
should be taken in less than five Business days to preserve the property of the
Trust for the benefit of Certificateholders, and the Trustee may within five
Business Days of its receipt of such notice advise the Special Servicer that it
has received an Opinion of Counsel (the cost of which shall be an expense of the
Trust) from an attorney duly licensed to practice law in the state where the
related Mortgaged Property or REO Property is located, that it is likely that
the laws of the state in which said action is to be taken either prohibit such
action if taken in the name of the Trust or that the Trust would be adversely
affected under the "doing business" or tax laws of such state if such action is
taken in its name; provided, further, that the Special Servicer shall not be
liable to the extent that it relies on the advice provided in such Opinion of
Counsel. Upon receipt of any such advice from the Trustee, the Special Servicer
shall take such action in the name of such Person or Persons, in trust for the
Trust, as shall be consistent with the Opinion of Counsel obtained by the
Trustee. Such Person or Persons shall acknowledge in writing that such action is
being taken by the Special Servicer in the name of the Trust. In the performance
of its duties hereunder, the Special Servicer shall be an independent contractor
and shall not, except in those instances where it is, after notice to the
Trustee as provided above, taking action in the name of the Trust, be deemed to
be the agent of the Trust. The Special Servicer shall indemnify the Trustee for
any loss, liability or reasonable expense (including attorneys' fees) incurred
by the Trustee or any director, officer, employee, agent or Controlling Person
of it or its affiliates in connection with any negligent or intentional misuse
of the foregoing powers of attorney furnished to the Special Servicer by the
Trustee. Such indemnification shall survive the resignation or termination of
the Special Servicer hereunder and the termination of this Agreement. The
Special Servicer shall not have any responsibility or liability for any act or
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omission of the Trustee, the Master Servicer or the Depositor that is not
attributable to the failure of the Special Servicer to perform its obligations
hereunder. The Special Servicer may conclusively rely on any advice of counsel
rendered in a Nondisqualification Opinion.
(b) In servicing and administering the Specially Serviced Mortgage Loans
and managing any related REO Properties, the Special Servicer shall employ
procedures consistent with the Servicing Standard. The Special Servicer shall
conduct, or cause to be conducted, inspections of the Mortgaged Properties
relating to Specially Serviced Mortgage Loans at such times and in such manner
as shall be consistent with the Servicing Standard; provided, that the Special
Servicer shall conduct, or cause to be conducted, inspections of the Mortgaged
Properties relating to Specially Serviced Mortgage Loans at least once during
each twelve-month period that ends on June 30 of any calendar year (commencing
with the twelve-month period ending June 30, 1999). The Special Servicer shall
provide to the Master Servicer and the Operating Adviser copies of the
Inspection Reports relating to such inspections as soon as practicable after the
completion of any inspection.
SECTION 9.5 "DUE-ON-SALE" CLAUSES; ASSIGNMENT AND ASSUMPTION AGREEMENTS;
MODIFICATIONS OF SPECIALLY SERVICED MORTGAGE LOANS.
Subject to the limitations of Section 12.3, the Special Servicer shall
have the following duties and rights:
(a) If any Specially Serviced Mortgage Loan contains a provision in the
nature of a "due-on-sale" clause, which by its terms:
(i) provides that such Specially Serviced 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 Specially Serviced Mortgage Loan may not be
assumed without the consent of the related mortgagee in connection with
any such sale or other transfer,
then, the Special Servicer, on behalf of the Trust, shall, after
consultation with the Operating Adviser and in accordance with the REMIC
Provisions, take such actions as it deems to be in the best economic
interest of the Trust in accordance with the Servicing Standard, and may
waive or enforce any due-on-sale clause contained in the related Mortgage
Note or Mortgage; provided, however, that if the Principal Balance of such
Mortgage Loan exceeds 5% of the Aggregate Principal Balances of all the
Mortgage Loans, then prior to waiving the effect of such provision, the
Special Servicer shall obtain Rating Agency Confirmation regarding such
waiver. As to any Mortgage Loan that is not a Specially Serviced Mortgage
Loan and contains a provision in the nature of a "due-on-sale" clause, the
Special Servicer shall have the rights and duties set forth in Section
8.7(b).
Subject to Section 9.39, after consultation with the Operating Adviser,
the Special Servicer is also authorized to take or enter into an assignment and
assumption agreement from or with the Person to whom such property has been or
is about to be conveyed, and/or to release the
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original Mortgagor from liability upon the Specially Serviced Mortgage Loan and
substitute the new Mortgagor as obligor thereon; provided, that except as
otherwise permitted by Section 9.5(c), any such assignment and assumption or
substitution agreement shall contain no terms that could result in an Adverse
REMIC Event. To the extent permitted by law, the Special Servicer shall enter
into an assumption or substitution agreement only if the credit status of the
prospective new mortgagor and the underwriting of the new mortgagor is in
compliance with the Special Servicer's regular commercial mortgage origination
or servicing standards and criteria. The Special Servicer shall notify the
Master Servicer of any such assignment and assumption or substitution agreement
and the Special Servicer shall forward to the Trustee the original of such
agreement, which original shall be added by the Trustee to the related Mortgage
File and shall, for all purposes, be considered a part of such Mortgage File to
the same extent as all other documents and instruments constituting a part
thereof.
(b) In connection with any assignment and assumption of a Specially
Serviced Mortgage Loan, in no event shall the Special Servicer consent to the
creation of any lien on a Mortgaged Property that is senior to, or on a parity
with, the lien of the related Mortgage. Nothing in this Section 9.5 shall
constitute a waiver of the Trustee's right, as the mortgagee of record, to
receive notice of any assignment and assumption of a Specially Serviced Mortgage
Loan, any sale or other transfer of the related Mortgaged Property or the
creation of any lien or other encumbrance with respect to such Mortgaged
Property.
(c) Subject to the Servicing Standard and Section 9.34, and the rights and
duties of the Master Servicer under Section 8.18, the Special Servicer may enter
into any modification, waiver or amendment (including, without limitation, the
substitution or release of collateral or the pledge of additional collateral) of
the terms of any Specially Serviced Mortgage Loan, including any modification,
waiver or amendment to (i) reduce the amounts owing under any Specially Serviced
Mortgage Loan by forgiving principal, accrued interest and/or any Prepayment
Premium, (ii) reduce the amount of the Scheduled Payment on any Specially
Serviced Mortgage Loan, including by way of a reduction in the related Mortgage
Rate, (iii) forebear in the enforcement of any right granted under any Mortgage
Note or Mortgage relating to a Specially Serviced Mortgage Loan, (iv) extend the
Maturity Date of any Specially Serviced Mortgage Loan and/or (v) accept a
principal prepayment on any Specially Serviced Mortgage Loan during any period
during which voluntary Principal Prepayments are prohibited, provided, in the
case of any such modification, waiver or amendment, that (A) the related
Mortgagor is in default with respect to the Specially Serviced Mortgage Loan or,
in the reasonable judgment of the Special Servicer, such default is reasonably
foreseeable, (B) in the reasonable judgment of the Special Servicer, such
modification, waiver or amendment would increase the recovery on the Specially
Serviced 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 related Mortgage Rate), (C) such modification, waiver or
amendment would not cause an Adverse REMIC Event to occur and (D) if the consent
of the Operating Adviser to such modification, waiver or amendment is required
pursuant to Section 9.39, the Special Servicer has obtained such consent.
In no event, however, 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 a
Specially Serviced Mortgage Loan at an
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interest rate below the then prevailing interest rate for comparable loans, as
determined by the Special Servicer (such limitation of extensions made at a
below market rate 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 ten (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 prevailing interest rate for comparable loans,
as determined by the Special Servicer, or (v) defer interest due on any
Specially Serviced Mortgage Loan in excess of 10% of the Scheduled 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.
Notwithstanding the foregoing, if a Mortgage Loan is a Balloon Mortgage
Loan that has failed to make the Balloon Payment at its original Maturity Date,
and such Balloon Loan is not a Specially Serviced Mortgage Loan (other than by
reason of the failure to make its Balloon Payment) and has not been delinquent
in the preceding twelve 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. The preceding sentence does not modify the limitations of clause
(i) or (iii) of the preceding paragraph.
The determination of the Special Servicer contemplated by clause (B) of
the proviso to the first paragraph, and clause (ii) of the second paragraph, of
this Section 9.5(c) shall be evidenced by an Officer's Certificate setting forth
the information required under subsection (c).
(d) 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 9.5(c) or pledge additional collateral for the Mortgage Loan pursuant to
Section 9.5(c), 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 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.
(e) The Special Servicer will promptly deliver to the Master Servicer, the
Operating Adviser, the Trustee and the Rating Agencies a notice, specifying any
such assignments and assumptions, 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
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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 4.4 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.
(f) 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 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 Section 1.860G-2(b). Subject to the foregoing,
the Special Servicer shall use its reasonable efforts, in accordance with the
Servicing Standard, 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).
(g) The Special Servicer shall cooperate with the Master Servicer (as
provided in Section 8.7) in connection with assignments and assumptions of
Mortgage Loans that are not Specially Serviced Mortgage Loans, and shall be
entitled to receive 40% of any assumption fee paid by the related Mortgagor in
connection with an assignment and assumption executed pursuant to Section 8.7(a)
and 100% of any assumption fee paid by the related Mortgagor in connection with
an assignment and assumption executed pursuant to Section 8.7(b).
(h) 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 9.6 RELEASE OF MORTGAGE FILES.
(a) Upon becoming aware of the payment in full of any Specially Serviced
Mortgage Loan, or the receipt by the Special Servicer of a notification that
payment in full will be escrowed in a manner customary for such purposes, the
Special Servicer will immediately notify the Master Servicer. The Special
Servicer shall determine, in accordance with the Servicing Standard, whether an
instrument of satisfaction shall be delivered and, if the Special Servicer
determines that such instrument should be delivered, the Special Servicer shall
deliver written approval of such delivery to the Master Servicer.
(b) From time to time and as appropriate for the servicing or foreclosure
of any Specially Serviced Mortgage Loan or the management of the related REO
Property and in accordance with the Servicing Standard, the Trustee shall
execute or cause to be executed such documents as shall be prepared and
furnished to the Trustee by a Special Servicing Officer (in form reasonably
acceptable to the Trustee) and as are necessary for such purposes. The Trustee
or Custodian shall, upon request of the Special Servicer and delivery to the
Trustee or Custodian
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of a request for release signed by a Special Servicing Officer substantially in
the form of Exhibit C, release the related Mortgage File to the Special
Servicer. After the transfer of servicing with respect to any Specially Serviced
Mortgage Loan to the Special Servicer, in accordance with the Servicing
Standard, the Special Servicer shall notify, in writing, the Mortgagor under
each Specially Serviced Mortgage Loan transferred to the Special Servicer, of
such transfer.
(c) The Special Servicer shall send notification in writing, to the Master
Servicer to request any documents and instruments in the possession of the
Master Servicer related to any Specially Serviced Mortgage Loan.
(d) The Special Servicer shall, with respect to any Rehabilitated Mortgage
Loan, release to the Master Servicer all documents and instruments in the
possession of the Special Servicer related to such Rehabilitated Mortgage Loan.
Prior to the transfer of servicing with respect to any Rehabilitated Mortgage
Loan to the Master Servicer in accordance with the Servicing Standard, the
Special Servicer shall notify, in writing, each Mortgagor under each
Rehabilitated Mortgage Loan of such transfer.
SECTION 9.7 DOCUMENTS, RECORDS AND FUNDS IN POSSESSION OF SPECIAL SERVICER
TO BE HELD FOR THE TRUSTEE.
(a) Special Servicer shall transmit to the Trustee or Custodian such
documents and instruments coming into the possession of the Special Servicer as
from time to time are required by the terms hereof to be delivered to the
Trustee. Any funds received by the Special Servicer in respect of any Specially
Serviced Mortgage Loan or any REO Property or which otherwise are collected by
the Special Servicer as Liquidation Proceeds, Condemnation Proceeds or Insurance
Proceeds in respect of any Specially Serviced Mortgage Loan or any REO Property
shall be transmitted to the Master Servicer within one Business Day of receipt
to the Certificate Account, except that if such amounts relate to REO Income,
they shall be deposited in the REO Account. The Special Servicer shall provide
access to information and documentation regarding the Specially Serviced
Mortgage Loans to the Trustee, the Master Servicer, the Fiscal Agent, the
Operating Adviser, and their respective agents and accountants at any time upon
reasonable written request and during normal business hours, provided that the
Special Servicer shall not be required to take any action or provide any
information that the Special Servicer determines will result in any material
cost or expense to which it is not entitled to reimbursement hereunder or will
result in any material liability for which it is not indemnified hereunder;
provided further that the Trustee shall be entitled to receive from the Special
Servicer all such information as the Trustee shall reasonably require to perform
its duties hereunder. In fulfilling such a request, the Special Servicer shall
not be responsible for determining whether such information is sufficient for
the Trustee's, the Master Servicer's, the Fiscal Agent's or the Operating
Adviser's purposes.
(b) The Special Servicer hereby acknowledges that the Trust owns the
Specially Serviced Mortgage Loans and all Mortgage Files representing such
Specially Serviced Mortgage Loans and all funds now or hereafter held by, or
under the control of, the Special Servicer that are collected by the Special
Servicer in connection with the Specially Serviced Mortgage Loans (but excluding
any Special Servicer Compensation and all other amounts to which the Special
Servicer is entitled hereunder); and the Special Servicer agrees that all
documents or instruments constituting part of the Mortgage Files, and such funds
relating to the
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Specially Serviced Mortgage Loans which come into the possession or custody of,
or which are subject to the control of, the Special Servicer, shall be held by
the Special Servicer for and on behalf of the Trust, as the Trustee's agent and
bailee.
(c) The Special Servicer also agrees that it shall not create, incur or
subject any Specially Serviced Mortgage Loans, or any funds that are required to
be deposited in any REO Account to any claim, lien, security interest, judgment,
levy, writ of attachment or other encumbrance, nor assert by legal action or
otherwise any claim or right of setoff against any Specially Serviced Mortgage
Loan or any funds, collected on, or in connection with, a Specially Serviced
Mortgage Loan.
SECTION 9.8 REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE SPECIAL
SERVICER.
(a) Special Servicer hereby represents, warrants to and covenants with the
Trustee (in its capacity as Trustee of the Trust) that as of the date hereof:
(i) the Special Servicer is duly organized, validly existing and in
good standing as a limited partnership under the laws of the State of
Maryland and shall be and thereafter remain, in compliance with the laws
of each state in which any Mortgaged Property (including any REO Property)
which is, or is related to, a Specially Serviced Mortgage Loan is located
to the extent necessary to perform its obligations under this Agreement,
except where the failure to so qualify or comply would not adversely
affect the Special Servicer's ability to perform its obligations hereunder
in accordance with the terms of this Agreement;
(ii) 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 execution, delivery and
performance of this Agreement; and this Agreement, assuming the due
authorization, execution and delivery thereof by the Depositor, the
Trustee, the Master Servicer and the Fiscal Agent, 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, to applicable bankruptcy, reorganization, insolvency,
receivership, moratorium and other similar laws affecting creditors'
rights generally as from time to time in effect, and to general principles
of equity (regardless of whether such enforceability is considered in a
proceeding in equity or at law);
(iii) the execution and delivery of this Agreement, the consummation
of the transactions contemplated hereby, and the fulfillment of or
compliance with the terms and conditions of this Agreement will not (1)
result in a breach of any term or provision of its charter or by-laws or
(2) 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,
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administrative agency or governmental body having jurisdiction over it,
which materially and adversely affects its ability to perform its
obligations under this Agreement.
(iv) no litigation is pending or, to the Special Servicer's
knowledge, threatened, against it, that would materially and adversely
affect the execution, delivery or enforceability of this Agreement or its
ability to service the Mortgage Loans or to perform any of its other
obligations hereunder in accordance with the terms hereof;
(v) no consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by it, or compliance by it with, this Agreement, or the
consummation of the transactions contemplated hereby, or if any such
consent, approval, authorization or order is required, it has obtained the
same or will obtain the same prior to the time necessary to perform its
obligations under this Agreement, and, except to the extent in the case of
performance, that its failure to be qualified as a foreign corporation or
licensed in one or more states is not necessary for the performance by it
of its obligations hereunder; and
(vi) the performance of the services by the Special Servicer
contemplated by this Agreement are in the ordinary course of business of
the Special Servicer.
(b) It is understood that the representations and warranties set
forth in this Section 9.8 shall survive the execution and delivery of this
Agreement.
(c) Any cause of action against the Special Servicer arising out of
the breach of any representations and warranties made in this Section
shall accrue upon discovery of such breach by any of the Trustee, the
Master Servicer or the Special Servicer. The Special Servicer shall give
prompt notice to the Trustee, the Depositor, the Operating Adviser and the
Master Servicer of the occurrence, or the failure to occur, of any event
that, with notice, or the passage of time or both, would cause any
representation or warranty in this Section to be untrue or inaccurate in
any respect.
SECTION 9.9 STANDARD HAZARD, FLOOD AND COMPREHENSIVE GENERAL
LIABILITY INSURANCE POLICIES.
(a) For all REO Property, to the extent consistent with the
Servicing Standard, the Special Servicer shall use efforts, consistent
with the Servicing Standard, to maintain with a Qualified Insurer a
Standard Hazard Insurance Policy which does not provide for reduction due
to depreciation in an amount which is not less than the full replacement
cost of the improvements of such REO Property or in an amount not less
than the unpaid principal balance plus all unpaid interest and the
cumulative amount of Servicing Advances (plus Advance Interest) made with
respect to such Mortgage Loan of such Mortgage Loan, whichever is less,
but, in any event, in an amount sufficient to avoid the application of any
co-insurance clause. If the Mortgaged Property is in an area identified in
the Federal Register by the Federal Emergency Management Agency as having
special flood hazards (and such flood insurance has been made available),
the Special Servicer shall maintain a flood insurance policy meeting the
requirements of the current guidelines of the Federal Insurance
Administration in an amount representing coverage equal to
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the lesser of the then outstanding Principal Balance of the Specially Serviced
Mortgage Loan and unpaid Advances (plus Advance Interest) and the maximum
insurance coverage required under such current guidelines. It is understood and
agreed that the Special Servicer has no obligation to obtain earthquake or other
additional insurance on REO Property, except as required by law and,
nevertheless, at its sole option and at the Trust's expense, it (if required at
origination and is available at commercially reasonable rates) may obtain such
earthquake insurance. The Special Servicer shall use its reasonable efforts,
consistent with the Servicing Standard, to obtain a comprehensive general
liability insurance policy for all REO Properties. The Special Servicer shall,
to the extent available at commercially reasonable rates (as determined by the
Special Servicer in accordance with the Servicing Standard) and to the extent
consistent with the Servicing Standard, use its reasonable efforts to maintain a
Rent Loss Policy covering revenues for a period of at least twelve months and a
comprehensive general liability policy with coverage comparable to prudent
lending requirements in an amount not less than $1 million per occurrence. All
applicable policies required to be maintained by the Special Servicer pursuant
to Section 9.9(a) shall name the Trustee as loss payee and be endorsed with a
standard mortgagee clause. The costs of such insurance shall be a Servicing
Advance, subject to the provisions of Section 4.4 hereof.
(b) Pursuant to Section 5.2, any amounts collected by the Special Servicer
under any insurance policies maintained pursuant to this Section 9.9 (other than
amounts to be applied to the restoration or repair of the REO Property) shall be
deposited into the applicable REO Account. Any cost incurred in maintaining the
insurance required hereby for any REO Property shall be a Servicing Advance,
subject to the provisions of Section 4.4 hereof.
(c) Notwithstanding the above, (i) the Special Servicer shall have no
obligation beyond using its reasonable efforts consistent with the Servicing
Standard to enforce such insurance requirements and (ii) the Special Servicer
shall not be required in any event to maintain or obtain insurance coverage
beyond what is reasonably available at a cost customarily acceptable and
consistent with the Servicing Standard. The Special Servicer shall notify the
Trustee of any such determination.
The Special Servicer shall conclusively be deemed to have satisfied its
obligations as set forth in this Section 9.9 either (i) if the Special Servicer
shall have obtained and maintained a master force placed or blanket insurance
policy insuring against hazard losses on all of the applicable Mortgage Loans
serviced by it, it being understood and agreed that such policy may contain a
deductible clause on terms substantially equivalent to those commercially
available and maintained by comparable servicers consistent with the Servicing
Standard, and provided that such policy is issued by a Qualified Insurer with a
minimum claims paying ability rating of at least "A" by S&P and "A" by DCR or
otherwise approved by the Rating Agencies or (ii) if the Special Servicer,
provided that the rating of such Person's long-term debt is not less than "A" by
S&P and "A" by DCR self-insures for its obligations as set forth in the first
paragraph of this Section 9.9. In the event that the Special Servicer shall
cause any Mortgage Loan to be covered by such a master force placed or blanket
insurance policy, the incremental cost of such insurance allocable to such
Mortgage Loan (i.e., other than any minimum or standby premium payable for such
policy whether or not any Mortgage Loan is then covered thereby), if not borne
by the related Mortgagor, shall be paid by the Special Servicer as a Servicing
Advance, subject to the provisions of Section 4.4 hereof. If such policy
contains a deductible clause, the
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Special Servicer shall, if there shall not have been maintained on the related
Mortgaged Property a policy complying with this Section 9.9 and there shall have
been a loss that would have been covered by such policy, deposit in the
Certificate Account the amount not otherwise payable under such master force
placed or blanket insurance policy because of such deductible clause to the
extent that such deductible exceeds (i) the deductible under the related
Mortgage Loan or (ii) if there is no deductible limitation required under the
Mortgage Loan, the deductible amount with respect to insurance policies
generally available on properties similar to the related Mortgaged Property
which is consistent with the Servicing Standard, and deliver to the Trustee an
Officer's Certificate describing the calculation of such amount. In connection
with its activities as administrator and servicer of the Mortgage Loans, the
Special Servicer agrees to present, on its behalf and on behalf of the Trustee,
claims under any such master force placed or blanket insurance policy.
SECTION 9.10 PRESENTMENT OF CLAIMS AND COLLECTION OF PROCEEDS. The Special
Servicer will prepare and present or cause to be prepared and presented on
behalf of the Trustee all claims under the Insurance Policies with respect to
REO Property, and take such actions (including the negotiation, settlement,
compromise or enforcement of the insured's claim) as shall be necessary to
recover under such policies. Any proceeds disbursed to the Special Servicer in
respect of such policies shall be promptly remitted to the Certificate Account,
upon receipt, except for any amounts realized that are to be applied to the
repair or restoration of the applicable REO Property in accordance with the
Servicing Standard. Any extraordinary expenses (but not ordinary and routine or
anticipated expenses) incurred by the Special Servicer in fulfilling its
obligations under this Section 9.10 shall be paid by the Trust.
SECTION 9.11 COMPENSATION TO THE SPECIAL SERVICER.
(a) As compensation for its activities hereunder, the Special Servicer
shall be entitled to (i) the Special Servicing Standby Fee, (ii) the Special
Servicing Fee, and (iii) the Liquidation Fee. Such amounts, if any, collected by
the Special Servicer from the related Mortgagor shall be transferred by the
Special Servicer to the Master Servicer within one Business Day of receipt
thereof, and deposited by the Master Servicer in the Certificate Account. The
Special Servicer shall be entitled to receive a Liquidation Fee from the
Liquidation Proceeds received in connection with a Final Disposition of a
Specially Serviced Mortgage Loan or REO Property.
(b) The Special Servicer shall be entitled to cause the Master Servicer to
withdraw from the Certificate Account the Special Servicer Compensation in
respect of each such Mortgage Loan in the time and manner set forth in Section
5.2 of this Agreement. The Special Servicer shall be required to pay all
expenses incurred by it in connection with its servicing activities hereunder
and shall not be entitled to reimbursement therefor except as expressly provided
in this Agreement.
(c) Additional Special Servicer compensation in the form of net interest
or income on any REO Account, assumption fees, extension fees, servicing fees,
Modification Fees, forbearance fees, Late Fees (net of Advance Interest) or
other usual and customary charges and fees actually received from the Mortgagor
in connection with any Specially Serviced Mortgage Loan shall be retained by the
Special Servicer, to the extent not required to be deposited in the
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Certificate Account pursuant to the terms of this Agreement. The Special
Servicer shall also be permitted to receive 40% of all assumption fees collected
with respect to Mortgage Loans that are not Specially Serviced Mortgage Loans as
provided in Section 8.7(a) and 100% of all assumption fees collected with
respect to Mortgage Loans that are not Specially Serviced Mortgage Loans as
provided in Section 8.7(b). To the extent any component of Special Servicer
Compensation is in respect of amounts usually and customarily paid by
Mortgagors, the Special Servicer shall use reasonable good faith efforts to
collect such amounts from the related Mortgagor, and to the extent so collected,
in full or in part, the Special Servicer shall not be entitled to compensation
for the portion so collected therefor hereunder out of the Trust.
SECTION 9.12 REALIZATION UPON DEFAULTED MORTGAGE LOANS.
(a) The Special Servicer, in accordance with the Servicing Standard and
subject to Section 9.4(a), shall use its reasonable efforts to foreclose upon,
repossess or otherwise comparably convert the ownership of Mortgaged Properties
securing such of the Specially Serviced Mortgage Loans as come into and continue
in default and as to which no satisfactory arrangements can be made for
collection of delinquent payments of such Mortgage Loan, the sale such Mortgage
Loan in accordance with this Agreement or the modification of such Mortgage Loan
in accordance with this Agreement. In connection with such foreclosure or other
conversion of ownership, the Special Servicer shall follow the Servicing
Standard. The foregoing is subject to the proviso that the Special Servicer
shall not request that the Master Servicer make a Servicing Advance for
Liquidation Expenses unless the Special Servicer shall in its sole discretion
determine, consistent with the Servicing Standard, (i) that such foreclosure or
restoration will increase on a net present value basis the Liquidation Proceeds
of the Specially Serviced Mortgage Loan to the Trust and (ii) that such
Liquidation Expenses will be recoverable from Liquidation Proceeds, and any such
Servicing Advance by the Master Servicer, the Trustee or the Fiscal Agent shall
be subject to the determination(s) of recoverability contemplated by Section
4.4.
(b) The Special Servicer shall not acquire any personal property relating
to any Specially Serviced Mortgage Loan pursuant hereto unless either:
(i) such personal property is incidental 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 received a Nondisqualification
Opinion (the cost of which shall be reimbursed by the Trust) to the effect
that the holding of such personal property by any REMIC will not cause the
imposition of a tax on any REMIC Pool under the Code or cause any REMIC
Pool to fail to qualify as a REMIC.
(c) Notwithstanding anything to the contrary in this Agreement, the
Special Servicer shall not, on behalf of the Trust, obtain title to a Mortgaged
Property as a result of or in lieu of foreclosure or otherwise, and shall not
otherwise acquire possession of, or take any other action with respect to, any
Mortgaged Property, if, as a result of any such action the Trust 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 applicable comparable federal, state or local law, or a "discharger" or
"responsible party" thereunder, unless
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the Special Servicer has also previously determined in accordance with the
Servicing Standard, based on a Phase I Environmental Report prepared by a Person
(who may be an employee or affiliate of the Master Servicer or the Special
Servicer) who regularly conducts environmental site assessments in accordance
with the standards of FNMA in the case of multi-family mortgage loans and
customary servicing practices in the case of commercial loans for environmental
assessments, which report shall be delivered to the Trustee, that:
(i) such Mortgaged Property is in compliance with applicable
Environmental Laws or, if not, after consultation with an environmental
expert that taking such actions as are necessary to bring the Mortgaged
Property in compliance therewith is reasonably likely to produce a greater
recovery on a net present value basis than not taking such actions; and
(ii) there are no circumstances or conditions present or threatened
at such Mortgaged Property relating to the use, management, disposal or
release of any hazardous substances, hazardous materials, hazardous
wastes, or petroleum-based materials for which investigation, testing,
monitoring, removal, clean-up or remediation could be required under any
federal, state or local law or regulation, or that, if any such materials
are present for which such action could be required, after consultation
with an environmental expert taking such actions with respect to the
affected Mortgaged Property is reasonably likely to produce a greater
recovery on a net present value basis than not taking such actions;
provided, however, that such compliance pursuant to clause (i) above or the
taking of such action pursuant to this clause (ii) shall only be required to the
extent that the cost thereof is a Servicing Advance of the Master Servicer
pursuant to this Agreement, subject to the provisions of Section 4.4 hereof.
(d) The cost of the Phase I Environmental Report contemplated by Section
9.12(c) may be treated as a Liquidation Expense, or in the event the related
Specially Serviced Mortgage Loan is not liquidated and a Final Recovery
Determination has been made with respect to such Specially Serviced Mortgage
Loan, the Master Servicer shall treat such cost as a Servicing Advance subject
to the provisions of Section 4.4 hereof; provided that, in the latter event, the
Special Servicer shall use its good faith reasonable business efforts to recover
such cost from the Mortgagor in connection with the curing of the default under
the Specially Serviced Mortgage Loan.
(e) If the Special Servicer determines, pursuant to Section 9.12(c), that
taking such actions as are necessary to bring any Mortgaged Property into
compliance with applicable Environmental Laws, or taking such actions with
respect to the containment, removal, clean-up or remediation of hazardous
substances, hazardous materials, hazardous wastes, or petroleum-based materials
affecting any such Mortgaged Property, is not reasonably likely to produce a
greater recovery on a net present value basis than not taking such actions, then
the Special Servicer shall take such action as it deems to be in the best
economic interest of the Trust, including, without limitation, releasing the
lien of the related Mortgage. If the Special Servicer determines that a material
possibility exists that Liquidation Expenses with respect to Mortgaged Property
(taking into account the cost of bringing it into compliance with applicable
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Environmental Laws) would exceed the principal balance of the related Mortgage
Loan, the Special Servicer shall not attempt to bring such Mortgaged Property
into compliance and shall not acquire title to such Mortgaged Property unless it
has received the written consent of the Trustee to such action.
(f) The Special Servicer shall have the right to determine, in accordance
with the Servicing Standard, the advisability of maintaining any action with
respect to any Specially Serviced Mortgage Loan, including, without limitation,
any action to obtain a deficiency judgment with respect to any Specially
Serviced Mortgage Loan.
SECTION 9.13 FORECLOSURE. In the event that the Trust obtains, through
foreclosure on a Mortgage or otherwise, the right to receive title to a
Mortgaged Property, the Special Servicer, as its agent, shall direct the
appropriate party to deliver title to the REO Property to the Trustee or its
nominee.
The Special Servicer may consult with counsel to determine when an
Acquisition Date shall be deemed to occur under the REMIC Provisions with
respect to the Mortgaged Property, the expense of such consultation being
treated as a Servicing Advance related to the foreclosure, subject to the
provisions of Section 4.4 hereof. The Special Servicer, on behalf of the Trust,
shall sell the REO Property expeditiously, but in any event within the time
period, and subject to the conditions, set forth in Section 9.15. Subject to
Section 9.15, the Special Servicer shall manage, conserve, protect and operate
the REO Property for the holders of beneficial interests in the Trust solely for
the purpose of its prompt disposition and sale.
SECTION 9.14 OPERATION OF REO PROPERTY.
(a) The Special Servicer shall segregate and hold all funds collected and
received in connection with the operation of each REO Property separate and
apart from its own funds and general assets and shall establish and maintain
with respect to each REO Property an account held in trust for the benefit of
the Certificateholders in the name of "LaSalle National Bank, as Trustee for the
Holders of Morgan Stanley Capital I Inc. Commercial Mortgage Pass-Through
Certificates Series 1998-WF1 [name of Property Account]" (each, an "REO
Account"), which shall be an Eligible Account. Amounts in any REO Account shall
be invested in Eligible Investments. The Special Servicer shall deposit all
funds received with respect to an REO Property in the applicable REO Account
within two days of receipt. The Special Servicer shall account separately for
funds received or expended with respect to each REO Property. All funds in each
REO Account may be invested only in Eligible Investments. The Special Servicer
shall notify the Trustee and the Master Servicer in writing of the location and
account number of each REO Account and shall notify the Trustee prior to any
subsequent change thereof.
(b) On or before each Special Servicer Remittance Date, the Special
Servicer shall withdraw from each REO Account and deposit in the Certificate
Account, the REO Income received or collected during the Collection Period
immediately preceding such Special Servicer Remittance Date on or with respect
to the related REO Properties and reinvestment income thereon; provided,
however, that the Special Servicer may retain in such REO Account such portion
of such proceeds and collections as may be necessary to maintain in the REO
Account sufficient funds for the proper operation, management and maintenance of
the related REO
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Property, including, without limitation, the creation of reasonable reserves for
repairs, replacements, and necessary capital improvements and other related
expenses. The Special Servicer shall notify the Master Servicer of all such
deposits (and the REO Properties to which the deposits relate) made into the
Certificate Account.
(c) If the Trust acquires the Mortgaged Property, the Special Servicer
shall have full power and authority, in consultation with the Operating Adviser,
and subject to the specific requirements and prohibitions of this Agreement, to
do any and all things in connection therewith as are consistent with the
Servicing Standard, subject to the REMIC Provisions, and in such manner as the
Special Servicer deems to be in the best interest of the Trust, and, consistent
therewith, may advance from its own funds to pay for the following items (which
amounts shall be reimbursed by the Trust), to the extent such amounts cannot be
paid from REO Income:
(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 could result or have resulted in the imposition of a lien
thereon; and
(iii) all costs and expenses necessary to maintain, operate, lease
and sell such REO Property (other than capital expenditures);
Notwithstanding the above, the Special Servicer shall pay for such items
if, but only if, in the Special Servicer's good faith reasonable business
judgment, such amounts will be recoverable from (i) proceeds received in respect
of such REO Property prior to the final liquidation of such REO Property or (ii)
Liquidation Proceeds, subject to the provisions of Section 4.4 hereof.
(d) The Special Servicer may, and to the extent necessary to (i) preserve
the status of the REO Property as "foreclosure property" under the REMIC
Provisions or (ii) avoid the imposition of a tax on "income from nonpermitted
assets" within the meaning of the REMIC Provisions, shall use its best efforts
to contract with any Independent Contractor for the operation and management of
the REO Property, provided that:
(i) the terms and conditions of any such contract shall not be
inconsistent herewith;
(ii) the terms of such contract shall be consistent with the
provisions of Section 856 of the Code and Treasury Regulations Section
1.856-4(b)(5);
(iii) only to the extent consistent with (ii) above, 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 Mortgaged Property
underlying the REO Property and (B) deposit on a daily basis all amounts
payable to the Trust in accordance with the contract between the Trust and
the Independent Contractor in an Eligible Account;
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(iv) none of the provisions of this Section 9.14 relating to any
such contract or to actions taken through any such Independent Contractor
shall be deemed to relieve the Special Servicer of any of its duties and
obligations to the Trustee with respect to the operation and management of
any such REO Property;
(v) if the Independent Contractor is an Affiliate of the Special
Servicer, the consent of the Operating Adviser and a Nondisqualification
Opinion must be obtained; and
(vi) 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 the Trust pursuant to this
subsection (d) for indemnification of the Special Servicer by such Independent
Contractor, and nothing in this Agreement shall be deemed to limit or modify
such indemnification. All fees of the Independent Contractor (other than fees
paid for performing services within the ordinary duties of a Special Servicer
which shall be paid by the Special Servicer) shall be paid from the income
derived from the REO Property. To the extent that the income from the REO
Property is insufficient, such fees shall be advanced as a Servicing Advance,
subject to the provisions of Section 4.4 hereof.
(e) Notwithstanding any other provision of this Agreement, the Special
Servicer shall not rent, lease, or otherwise earn income on behalf of the Trust
or the beneficial owners thereof with respect to REO Property which might cause
the REO Property to fail to qualify as "foreclosure property" within the meaning
of Section 860G(a)(8) of the Code (without giving effect to the final sentence
thereof) or result in the receipt by any REMIC of any "income from nonpermitted
assets" within the meaning of Section 860F(a)(2) of the Code or any "net income
from foreclosure property" which is subject to tax under the REMIC Provisions
unless (i) the Trustee and the Special Servicer have received an Opinion of
Counsel (at the Trust's sole expense) to the effect that, under the REMIC
Provisions and any relevant proposed legislation, any income generated for REMIC
I by the REO Property would not result in the imposition of a tax upon REMIC I
or (ii) in accordance with the Servicing Standard, the Special Servicer
determines the income or earnings with respect to such REO Property will offset
any tax under the REMIC Provisions relating to such income or earnings and will
maximize the net recovery from the REO Property to the Certificateholders. The
Special Servicer shall notify the Trustee and the Master Servicer of any
election by it to incur such tax, and the Special Servicer (i) shall hold in
escrow in an Eligible Account an amount equal to the tax payable thereby from
revenues collected from the related REO Property, (ii) provide the Trustee with
all information for the Trustee to file the necessary tax returns in connection
therewith and (iii) upon request by the Trustee, pay from such account to the
Trustee the amount of the applicable tax. The Trustee shall file the applicable
tax returns based on the information supplied by the Special Servicer and pay
the applicable tax from the amounts paid by the Special Servicer.
Subject to, and without limiting the generality of the foregoing, the
Special Servicer, on behalf of the Trust, shall not:
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(i) permit the Trust to enter into, renew or extend any New Lease
with respect to the REO Property, if the New Lease by its terms will give
rise to any income that does not constitute Rents from Real Property;
(ii) permit any amount to be received or accrued under any New Lease
other than amounts that will constitute Rents from Real Property;
(iii) authorize or permit any construction on the REO Property,
other than the completion of a building or other improvement thereon, and
then only if more than thirty percent of the construction of such building
or other improvement was completed before default on the Mortgage Loan
became imminent, all within the meaning of Section 856(e)(4)(B) of the
Code; or
(iv) operate, other than through an Independent Contractor, or allow
any other Person to operate, other than through an Independent Contractor,
the REO Property on any date more than 90 days after the Acquisition Date;
unless, in any such case, the Special Servicer has requested and received
an Opinion of Counsel at the Trust's sole expense to the effect that such
action will not cause such REO Property to fail to qualify as "foreclosure
property" within the meaning of Section 860G(a)(8) of the Code (without
giving effect to the final sentence thereof) at any time that it is held
by the applicable REMIC Pool, in which case the Special Servicer may take
such actions as are specified in such Opinion of Counsel.
SECTION 9.15 SALE OF REO PROPERTY.
(a) In the event that title to any REO Property is acquired by the Trust
in respect of any Specially Serviced Mortgage Loan, the deed or certificate of
sale shall be issued to the Trust, the Trustee or to their respective nominees.
The Special Servicer, after consultation with the Operating Adviser, shall use
its reasonable best efforts to sell any REO Property in accordance with the
Servicing Standard within two years of its acquisition and prior to the Final
Rated Distribution Date, unless (i) the Trustee, on behalf of the applicable
REMIC Pool, has been granted an extension of time (an "Extension") (which
extension shall be applied for at least 60 days prior to the expiration of the
two year period from acquisition) by the Internal Revenue Service to sell such
REO Property, in which case the Special Servicer shall continue to attempt to
sell the REO Property for its fair market value for such period longer than two
years as such Extension permits or (ii) the Special Servicer seeks and
subsequently receives, at the expense of the Trust, a Nondisqualification
Opinion, addressed to the Trustee and the Special Servicer, to the effect that
the holding by the Trust of such REO Property subsequent to two years after its
acquisition will not result in the imposition of taxes on "prohibited
transactions" of a REMIC, as defined in Section 860F(a)(2) of the Code, or cause
any REMIC to fail to qualify as a REMIC at any time that any Certificates are
outstanding. If the Trustee has not received an Extension or such Opinion of
Counsel and the Special Servicer is not able to sell such REO Property within
such two year period, or if an Extension has been granted and the Special
Servicer is unable to sell such REO Property within the extended time period,
the Special Servicer shall, after consultation with the Operating Adviser,
before the end of such two-year period or extended period, as the case may be,
auction the REO Property to the highest bidder (which may be the Special
Servicer) in accordance with the Servicing Standard; provided, however, that no
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Interested Person shall be permitted to purchase the REO Property at a price
less than the Purchase Price except as provided in Section 9.36; and provided,
further that if the Special Servicer intends to bid on any REO Property, (i) the
Special Servicer shall notify the Trustee of such intent, (ii) the Trustee shall
promptly obtain, at the expense of the Trust an Appraisal of such REO Property
and (iii) the Special Servicer shall not bid less than the fair market value set
forth in such Appraisal. Neither any Seller nor the Depositor may purchase REO
Property at a price in excess of the fair market value thereof.
(b) Within 30 days of the sale of the REO Property, the Special Servicer
shall provide to the Trustee and the Master Servicer a statement of accounting
for such REO Property, including without limitation, (i) the Acquisition Date
for the REO Property, (ii) the date of disposition of the REO Property, (iii)
the sale price and related selling and other expenses, (iv) accrued interest
(including interest deemed to have accrued) on the Specially Serviced Mortgage
Loan to which the REO Property related, calculated from the Acquisition Date to
the disposition date, (v) final property operating statements, and (vi) such
other information as the Trustee may reasonably request in writing.
(c) The Liquidation Proceeds from the final disposition of the REO
Property shall be deposited in the Certificate Account within one Business Day
of receipt.
(d) The Special Servicer shall provide the necessary information to the
Master Servicer to allow the Master Servicer to prepare, deliver and file
reports of foreclosure and abandonment in accordance with Section 6050J and
Section 6050P, if required, of the Code with respect to such REO Property and
shall deliver such information with respect thereto as the Master Servicer or
the Trustee may request in writing.
SECTION 9.16 REALIZATION ON COLLATERAL SECURITY. In connection with the
enforcement of the rights of the Trust to any property securing any Specially
Serviced Mortgage Loan other than the related Mortgaged Property, the Special
Servicer shall consult with counsel to determine how best to enforce such rights
in a manner consistent with the REMIC Provisions and shall not, based on a
Nondisqualification Opinion addressed to the Special Servicer and the Trustee
(the cost of which shall be an expense of the Trust) take any action that could
result in the failure of any REMIC Pool to qualify as a REMIC while any
Certificates are outstanding, unless such action has been approved by a vote of
100% of each Class of Certificateholders (including the Class R-I, Class R-II
and Class R-III Certificateholders).
SECTION 9.17 SALE OF DEFAULTED MORTGAGE LOANS. In lieu of exercising
remedies pursuant to the terms of any Mortgage Loan and Mortgage, the Special
Servicer may sell a Specially Serviced Mortgage Loan that is a Defaulted
Mortgage Loan for cash in accordance with Section 9.36 hereof.
SECTION 9.18 ANNUAL OFFICER'S CERTIFICATE AS TO COMPLIANCE. The Special
Servicer shall deliver to the Depositor, the Master Servicer and the Trustee on
or before the Report Date occurring in March of each year, commencing in March
1999, an Officer's Certificate stating, as to the signer thereof, that (A) a
review of the activities of the Special Servicer during the preceding calendar
year or portion thereof and of the performance of the Special Servicer under
this Agreement has been made under such officer's supervision and (B) to
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the best of such officer's knowledge, based on such review, the Special Servicer
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 Special Servicer shall forward a copy of each
such statement to the Rating Agencies.
SECTION 9.19 ANNUAL INDEPENDENT ACCOUNTANTS' SERVICING REPORT. On or
before the Report Date occurring in April of each year, commencing in April
1999, the Special Servicer, at its expense, shall cause a firm of nationally
recognized independent public accountants that is a member of the American
Institute of Certified Public Accountants to furnish a statement to the
Depositor, the Master Servicer, the Operating Adviser and the Trustee to the
effect that such firm has examined certain documents and records relating to the
servicing of the Mortgage Loans and that, on the basis of such examination
conducted substantially in compliance with the USAP or the FHLMC Audit Program,
such servicing for the preceding calendar year has been conducted in compliance
with such agreements except for such significant exceptions or errors in records
that, in the opinion of such firm, the USAP or FHLMC Audit Program require it to
report. The Special Servicer shall forward a copy of each such report to the
Rating Agencies.
SECTION 9.20 MERGER OR CONSOLIDATION. Any Person into which 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 Special Servicer
shall be a party, or any Person succeeding to the business of the Special
Servicer, shall be the successor of the Special Servicer hereunder, without the
execution or filing of any paper or any further act on the part of any of the
parties hereto; provided, however, that each of the Rating Agencies provides
written acknowledgment that its rating of the Certificates in effect immediately
prior to such merger, consolidation, or succession will not be qualified or
reduced as a result of such merger, consolidation or succession. If the
conditions to the proviso in the foregoing sentence are not met, the Trustee may
terminate the Special Servicer's servicing of the Specially Serviced Mortgage
Loans pursuant hereto, such termination to be effected in the manner set forth
in Section 9.31.
SECTION 9.21 RESIGNATION OF SPECIAL SERVICER.
(a) Except as otherwise provided in this Section 9.21, the Special
Servicer shall not resign from the obligations and duties hereby imposed on it
unless it determines that the Special Servicer's 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. Any such
determination permitting the resignation of the Special Servicer shall be
evidenced by an Opinion of Counsel to such effect delivered to the Master
Servicer, the Operating Adviser, and the Trustee. No such resignation shall
become effective until a successor servicer designated by the Operating Adviser
and the Trustee shall have (i) satisfied the requirements that would apply
pursuant to Section 9.20 hereof if a merger of the Special Servicer had
occurred, (ii) assumed the Special Servicer's responsibilities and obligations
under this Agreement and (iii) Rating Agency Confirmation shall have been
obtained. Notice of such resignation shall be given promptly by the Special
Servicer to the Master Servicer and the Trustee.
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(b) The Special Servicer may resign from the obligations and duties hereby
imposed on it, upon reasonable notice to the Trustee, provided that (i) a
successor Special Servicer is (x) available, (y) reasonably acceptable to the
Operating Adviser, the Depositor, and the Trustee, and (z) willing to assume the
obligations, responsibilities and covenants to be performed hereunder by the
Special Servicer on substantially the same terms and conditions, and for not
more than equivalent compensation as that herein provided, (ii) the successor
Special Servicer has assets of at least $15,000,000 and (iii) Rating Agency
Confirmation is obtained with respect to such resignation, as evidenced by a
letter from each Rating Agency delivered to the Trustee. Any costs of such
resignation and of obtaining a replacement Special Servicer shall be borne by
the Special Servicer and shall not be an expense of the Trust.
(c) No such resignation under paragraph (b) above shall become effective
unless and until such successor Special Servicer enters into a servicing
agreement with the Trustee assuming the obligations and responsibilities of the
Special Servicer hereunder in form and substance reasonably satisfactory to the
Trustee.
SECTION 9.22 ASSIGNMENT OR DELEGATION OF DUTIES BY SPECIAL SERVICER.
Except as expressly provided herein including Section 9.3, the Special Servicer
shall not assign or transfer any of its rights, benefits or privileges hereunder
to any other Person, or delegate to or subcontract with, or authorize or appoint
any other Person to perform any of the duties, covenants or obligations to be
performed by the Special Servicer hereunder; provided that the Special Servicer
shall have the right without the prior written consent of the Trustee to
delegate or assign to or subcontract with or authorize or appoint an Affiliate
of the Special Servicer to perform and carry out any duties, covenants or
obligations to be performed and carried out by the Special Servicer hereunder.
In no case, however, shall any such delegation, subcontracting or assignment to
an Affiliate of the Special Servicer relieve the Special Servicer of any
responsibility, obligation or liability hereunder. Notice of such permitted
assignment shall be given promptly by the Special Servicer to the Master
Servicer and the Trustee, and any cost thereof shall be borne by the Special
Servicer.
SECTION 9.23 LIMITATION ON LIABILITY OF THE SPECIAL SERVICER AND OTHERS.
(a) Neither the Special Servicer nor any of the directors, officers,
employees or agents of the Special Servicer shall be under any liability to the
Certificateholders or the Trustee for any action taken or for refraining from
the taking of any action in good faith and using reasonable business judgment;
provided that this provision shall not protect the Special Servicer or any such
person against any breach of a representation or warranty contained herein or
any liability which would otherwise be imposed by reason of willful misfeasance,
bad faith or negligence in its performance of duties hereunder or by reason of
negligent disregard of obligations and duties hereunder. The Special Servicer
and any director, officer, employee or agent of the Special Servicer may rely in
good faith on any document of any kind prima facie properly executed and
submitted by any Person (including, without limitation, the information and
reports delivered by or at the direction of the Master Servicer or any director,
officer, employee or agent of the Master Servicer) respecting any matters
arising hereunder. The Special Servicer shall not be under any obligation to
appear in, prosecute or defend any legal action which is not incidental to its
duties to service the Specially Serviced Mortgage Loans in accordance with this
Agreement; provided that the Special Servicer may in its sole discretion
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undertake any such action which it may reasonably deem necessary or desirable in
order to protect the interests of the Certificateholders and the Trustee in the
Specially Serviced Mortgage Loans, or shall undertake any such action if
instructed to do so by the Trustee. In such event, all legal expenses and costs
of such action (other than those that are connected with the routine performance
by the Special Servicer of its duties hereunder) shall be expenses and costs of
the Trust, and the Special Servicer shall be entitled to be reimbursed therefor
as provided by Section 5.2 hereof. Notwithstanding any term in this Agreement,
the Special Servicer shall not be relieved from liability to, or entitled to
indemnification from, the Trust for any action taken by it at the direction of
the Operating Adviser which is in conflict with the Servicing Standard.
(b) In addition, the Special Servicer shall have no liability with respect
to, and shall be entitled to conclusively rely on as to the truth of the
statements and the correctness of the opinions expressed in any certificates or
opinions furnished to the Special Servicer and conforming to the requirements of
this Agreement. Neither the Special Servicer, nor any director, officer,
employee, agent or Affiliate, shall be personally liable for any error of
judgement made in good faith by any officer, unless it shall be proved that the
Special Servicer or such officer was negligent in ascertaining the pertinent
facts. Neither the Special Servicer, nor any director, officer, employee, agent
or Affiliate, shall be personally liable for any action taken, suffered or
omitted by it in good faith and believed by it to be authorized or within the
discretion, rights or powers conferred upon it by this Agreement. The Special
Servicer shall be entitled to rely on reports and information supplied to it by
the Master Servicer and the related Mortgagors and shall have no duty to
investigate or confirm the accuracy of any such report or information.
(c) The Special Servicer shall not be obligated to incur any liabilities,
costs, charges, fees or other expenses which relate to or arise from any breach
of any representation, warranty or covenant made by the Depositor, the Master
Servicer, the Fiscal Agent or Trustee in this Agreement. The Trust shall
indemnify and hold harmless the Special Servicer from any and all claims,
liabilities, costs, charges, fees or other expenses which relate to or arise
from any such breach of representation, warranty or covenant to the extent such
amounts are not recoverable from the party committing such breach.
(d) Except as otherwise specifically provided herein:
(i) the Special Servicer 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, appraisal, bond or other
paper or document believed or in good faith believed by it to be genuine
and to have been signed or presented by the proper party or parties;
(ii) the Special Servicer may consult with counsel, and any written
advice or Opinion of Counsel shall be full and complete authorization and
protection with respect to any action taken or suffered or omitted by it
hereunder in good faith and in accordance with such advice or Opinion of
Counsel;
(iii) the Special Servicer shall not be personally liable for any
action taken, suffered or omitted by it in good faith and believed by it
to be authorized or within the discretion, rights or powers conferred upon
it by this Agreement; and
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(iv) the Special Servicer, in preparing any reports hereunder, may
rely, and shall be protected in acting or refraining from acting upon any
information (financial or other), statement, certificate, document,
agreement, covenant, notice, request or other paper reasonably believed or
in good faith believed by it to be genuine and provided by any Mortgagor
or manager of a Mortgaged Property.
The Special Servicer and any director, officer, employee or agent of the
Special Servicer (and the General Partner of the Special Servicer) shall be
indemnified by the Trustee and the Fiscal Agent, as the case may be, and held
harmless against any loss, liability or expense including reasonable attorneys'
fees incurred in connection with any legal action relating to the Trustee's or
the Fiscal Agent's, as the case may be, respective willful misfeasance, bad
faith or negligence in the performance of its respective duties hereunder or by
reason of reckless disregard of its respective duties hereunder, other than any
loss, liability or expense incurred by reason of 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. The Special Servicer shall promptly notify the
Trustee if a claim is made by a third party entitling the Special Servicer to
indemnification hereunder, whereupon the Trustee shall assume the defense of any
such claim (with counsel reasonably satisfactory to the Special Servicer). Any
failure to so notify the Trustee shall not affect any rights the Special
Servicer may have to indemnification hereunder or otherwise, unless the interest
of the Trustee is materially prejudiced thereby. The indemnification provided
herein shall survive the termination of this Agreement and the termination or
resignation of the Special Servicer. Such indemnity shall survive the
termination of this Agreement or the resignation or removal of the Special
Servicer hereunder. Any payment hereunder made by the Trustee or the Fiscal
Agent pursuant to this paragraph to the Special Servicer shall be paid from the
Trustee's or Fiscal Agent's own funds, without reimbursement from the Trust
therefor except achieved through subrogation as provided in this Agreement.
SECTION 9.24 INDEMNIFICATION; THIRD-PARTY CLAIMS.
(a) The Special Servicer and any director, officer, employee or agent of
the Special Servicer (and the General Partner of the Special Servicer) 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 (i) this Agreement, and (ii) any action taken by the
Special Servicer in accordance with the instruction delivered in writing to the
Special Servicer by the Trustee or the Master Servicer pursuant to any provision
of this Agreement in each case and the Special Servicer and each of its
directors, officers, employees and agents (and the General Partner of the
Special Servicer) shall be entitled to indemnification from the Trust for any
loss, liability or expense (including attorney's fees) incurred in connection
with the provision by the Special Servicer of any information included by the
Special Servicer in the report required to be provided by the Special Servicer
pursuant to this Agreement, other than any loss, liability or expense incurred
by reason of willful misfeasance, bad faith or negligence in the performance of
duties hereunder or by reason of negligent disregard of obligations and duties
hereunder. The Special Servicer shall promptly notify the Trustee if a claim is
made by a third party with respect hereto or the Specially Serviced Mortgage
Loans entitling the Special Servicer to indemnification hereunder, whereupon the
Trustee shall assume the defense of any such claim
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(with counsel reasonably satisfactory to the Special Servicer) and the Trust
shall pay, from amounts on deposit in the Certificate Account pursuant to
Section 5.2, all expenses in connection therewith, including counsel fees, and
promptly pay, discharge and satisfy any judgment or decree which may be entered
against it or them in respect of such claim. Any failure to so notify the
Trustee shall not affect any rights the Special Servicer may have to
indemnification hereunder or otherwise, unless the interest of the Trust is
materially prejudiced thereby. The indemnification provided herein shall survive
the termination of this Agreement and the termination or resignation of the
Special Servicer. Any expenses incurred or indemnification payments made by the
Special Servicer shall be reimbursed by the party responsible, or if not
recovered by the Special Servicer from such Person, then by the Trust, if a
court of competent jurisdiction makes a final, non-appealable judgment that the
conduct of the Special Servicer was not culpable.
(b) The Special Servicer agrees to indemnify the Trust, the Trustee, the
Fiscal Agent, the Depositor, the Master Servicer and any director, officer,
employee or agent of the Trustee, the Fiscal Agent, the Depositor and the Master
Servicer, 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 the Trust or the Trustee, the Fiscal
Agent, the Depositor or the Master Servicer may sustain arising from or as a
result of the willful misfeasance, bad faith or negligence in the performance of
duties hereunder or by reason of reckless disregard of obligations and duties
hereunder by the Special Servicer. The Trustee, the Fiscal Agent, the Depositor
or the Master Servicer shall immediately notify the Special Servicer if a claim
is made by a third party with respect to this Agreement or the Specially
Serviced Mortgage Loans entitling the Trust or the Trustee, the Fiscal Agent,
the Depositor or the Master Servicer, 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 Depositor or the Master Servicer, as the case may be) and pay all expenses
in connection therewith, including counsel fees, and promptly pay, discharge and
satisfy any judgment or decree which may be entered against it or them in
respect of such claim. Any failure to so notify the Special Servicer shall not
affect any rights the Trust or the Trustee, the Fiscal Agent, the Depositor or
the Master Servicer 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 termination or resignation of the Special
Servicer. Any expenses incurred or indemnification payments made by the Special
Servicer shall be reimbursed by the party so paid, if a court of competent
jurisdiction makes a final, non-appealable judgment that the conduct of the
Special Servicer was not culpable or found to have acted with willful
misfeasance, bad faith or negligence.
(c) The initial Special Servicer and the Depositor expressly agree that
the only information furnished by or on behalf of the Special Servicer for
inclusion in the Prospectus Supplement is the information set forth in the
paragraphs under the caption "SERVICING OF THE MORTGAGE LOANS -- The Special
Servicer" on page S-77 of the Prospectus Supplement.
SECTION 9.25 [RESERVED.]
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SECTION 9.26 SPECIAL SERVICER MAY OWN CERTIFICATES. The Special Servicer
or any agent of the Special Servicer (if the Special Servicer is not Wells Fargo
Bank, National Association unless Wells Fargo Bank, National Association
acquires the Certificates at the then fair market value of such Certificates) in
its individual capacity or in any other capacity may become the owner or pledgee
of Certificates with the same rights as it would have if they were not the
Special Servicer or such agent. Any such interest of the Special Servicer or
such agent in the Certificates shall not be taken into account when evaluating
whether actions of the Special Servicer are consistent with its obligations in
accordance with the Servicing Standard regardless of whether such actions may
have the effect of benefiting the Class or Classes of Certificates owned by the
Special Servicer.
SECTION 9.27 TAX REPORTING. From and after the Closing Date, the Special
Servicer shall provide the necessary information to the Master Servicer to allow
the Master Servicer to comply with the Mortgagor tax reporting requirements
imposed by Sections 6050H, 6050J and 6050P of the Code with respect to any
Specially Serviced Mortgage Loan. The Special Servicer shall provide to the
Master Servicer copies of any such reports. The Master Servicer shall forward
such reports to the Trustee.
SECTION 9.28 APPLICATION OF FUNDS RECEIVED. It is anticipated that the
Master Servicer will be collecting all payments with respect to the Mortgage
Loans (other than payments with respect to REO Income). If, however, the Special
Servicer should receive any payments with respect to any Mortgage Loan (other
than REO Income) it shall, within one Business Day of receipt from the Mortgagor
or otherwise of any amounts attributable to payments with respect to or the sale
of any Mortgage Loan or any Specially Serviced Mortgage Loan, if any, (but not
including REO Income, which shall be deposited in the applicable REO Account as
provided in Section 9.14 hereof), either, (i) forward such payment (endorsed, if
applicable, to the order of the Master Servicer), to the Master Servicer, or
(ii) deposit such amounts, or cause such amounts to be deposited, in the
Certificate Account. The Special Servicer shall notify the Master Servicer of
each such amount received on or before the date required for the making of such
deposit or transfer, as the case may be, indicating the Mortgage Loan or
Specially Serviced Mortgage Loan to which the amount is to be applied and the
type of payment made by or on behalf of the related Mortgagor.
SECTION 9.29 COMPLIANCE WITH REMIC PROVISIONS. The Special Servicer shall
act in accordance with this Agreement and the provisions of the Code relating to
REMICs in order to create or maintain the status of any REMIC Pool as a REMIC
under the Code or, as appropriate, adopt a plan of complete liquidation. The
Special Servicer shall not take any action or cause any REMIC to take any action
that would (i) endanger the status of any REMIC as a REMIC under the Code or
(ii) subject to Section 9.14(e), result in the imposition of a tax upon any
REMIC (including, but not limited to, the tax on prohibited transactions as
defined in Code Section 860F(a)(2) or on prohibited contributions pursuant to
Section 860G(d)) unless the Master Servicer and the Trustee have received a
Nondisqualification Opinion (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 tax. The Special Servicer shall comply with
the provisions of Article XII hereof.
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SECTION 9.30 TERMINATION.
(a) The obligations and responsibilities of the Special Servicer created
hereby (other than the obligation of the Special Servicer to make payments to
the Master Servicer as set forth in Section 9.28 and the obligations of the
Special Servicer pursuant to Sections 9.8 and 9.24 hereof) shall terminate on
the date which is the earliest of (i) the later of (A) the final payment or
other liquidation of the last Mortgage Loan remaining outstanding or, (B) the
disposition of all REO Property in respect of any Specially Serviced Mortgage
Loan, (ii) 60 days following the date on which the Trustee or the Operating
Adviser has given written notice to the Special Servicer that this Agreement is
terminated pursuant to Section 9.30(b) or 9.30(c), respectively, and (iii) the
effective date of any resignation of the Special Servicer effected pursuant to
and in accordance with Section 9.21.
(b) The Trustee may terminate the Special Servicer in the event that (i)
the Special Servicer has failed to remit any amount required to be remitted to
the Trustee, the Master Servicer, Fiscal Agent, or the Depositor under the terms
of this Agreement, (ii) the Special Servicer has breached any material
obligation set forth in this Agreement and has failed to cure such breach within
thirty (30) days after written notice of such failure, requiring the same to be
remedied, shall have been given to the Special Servicer by the Trustee or the
Master Servicer, that materially and adversely affects the interests of the
Certificateholders, provided, however, that if the Special Servicer certifies to
the Trustee and the Depositor that the Special Servicer is in good faith
attempting to remedy such failure, such cure period will be extended to the
extent necessary to permit the Special Servicer to cure such failure; provided,
however, that such cure period may not exceed 90 days; (iii) the Special
Servicer has made one or more false or misleading representations or warranties
herein that materially and adversely affects the interest of the
Certificateholder, and has failed to cure such breach within thirty (30) days
after notice by the Trustee or the Master Servicer, provided, however, that if
the Special Servicer certifies to the Trustee and the Depositor that the Special
Servicer is in good faith attempting to remedy such failure, such cure period
will be extended to the extent necessary to permit the Special Servicer to cure
such failure; provided, however, that such cure period may not exceed 90 days;
(iv) the Trustee shall receive notice from any Rating Agency to the effect that
the continuation of 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; (v) a decree or order of a court or
agency or supervisory authority having jurisdiction in the premises in an
involuntary case under any present or future federal or state bankruptcy,
insolvency or similar law for the appointment of a conservator, receiver,
liquidator, trustee or similar official in any bankruptcy, insolvency,
readjustment of debt, marshalling of assets and liabilities or similar
proceedings, or for the winding-up or liquidation of its affairs, shall have
been entered against the Special Servicer and such decree or order shall have
remained in force undischarged or unstayed for a period of 60 days; (vi) the
Special Servicer shall consent to the appointment of a conservator, receiver,
liquidator, trustee or similar official in any bankruptcy, insolvency,
readjustment of debt, marshalling of assets and liabilities or similar
proceedings relating to the Special Servicer or of or relating to all or
substantially all of its property; or (vii) 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. Such termination shall
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be effective on the date after the date of any of the above events that the
Trustee specifies in a written notice to the Special Servicer specifying the
reason for such termination.
(c) The Operating Adviser shall have the right to direct the Trustee to
terminate the Special Servicer, provided that the Operating Adviser shall
appoint a successor Special Servicer who will (i) be reasonably satisfactory to
the Trustee and to the Depositor, and (ii) execute and deliver to the Trustee an
agreement, in form and substance reasonably satisfactory to the Trustee, whereby
the successor Special Servicer agrees to assume and perform punctually the
duties of the Special Servicer specified in this Agreement; and provided,
further, that the Trustee shall have received Rating Agency Confirmation from
each Rating Agency prior to the termination of the Special Servicer. The Special
Servicer shall not be terminated pursuant to this subsection (c) until a
successor Special Servicer shall have been appointed.
SECTION 9.31 PROCEDURE UPON TERMINATION.
(a) Notice of any termination pursuant to clause (i) of Section 9.30(a),
specifying the Distribution Date upon which the final distribution shall be
made, shall be given promptly by the Special Servicer to the Trustee no later
than the later of (i) five Business Days after the final payment or other
liquidation of the last Mortgage Loan or (ii) the sixth day of the month in
which the final Distribution Date will occur. Upon any such termination, the
duties of the Special Servicer (other than the obligations of the Special
Servicer pursuant to Sections 9.8 and 9.24 hereof) shall terminate and the
Special Servicer shall transfer to the Master Servicer the amounts remaining in
each REO Account and shall thereafter terminate each REO Account and any other
account or fund maintained with respect to the Specially Serviced Mortgage
Loans.
(b) On the date specified in a written notice of termination given to the
Special Servicer pursuant to clause (ii) of Section 9.30(a), all authority,
power and rights of the Special Servicer under this Agreement, whether with
respect to the Specially Serviced Mortgage Loans or otherwise, shall terminate;
provided, that in no event shall the termination of the Special Servicer be
effective until the Trustee or other successor Special Servicer shall have
succeeded the Special Servicer as successor Special Servicer, notified the
Special Servicer of such designation, and such successor Special Servicer shall
have assumed the Special Servicer's obligations and responsibilities, as set
forth in an agreement substantially in the form hereof, with respect to the
Specially Serviced Mortgage Loans. The Trustee or other successor Special
Servicer may not succeed the Special Servicer as Special Servicer until and
unless it has satisfied the provisions that would apply to a Person succeeding
to the business of the Special Servicer pursuant to Section 9.20 hereof. The
Trustee is hereby authorized and empowered to execute and deliver, on behalf of
the Special Servicer, as attorney-in-fact or otherwise, any and all documents
and other instruments, and to do or accomplish all other acts or things
necessary or appropriate to effect the purposes of such notice of termination.
The Special Servicer agrees to cooperate with the Trustee and the Fiscal Agent
in effecting the termination of the Special Servicer's responsibilities and
rights hereunder as Special Servicer including, without limitation, providing
the Trustee all documents and records in electronic or other form reasonably
requested by it to enable the successor Special Servicer designated by the
Trustee to assume the Special Servicer's functions hereunder and to effect the
transfer to such successor for administration by it of all amounts which shall
at the time be or should have been deposited by the Special Servicer
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in any REO Account and any other account or fund maintained or thereafter
received with respect to the Specially Serviced Mortgage Loans.
SECTION 9.32 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 on or before the first
Report Date occurring no earlier than 45 days after (A) a Servicing Transfer
Event, (B) the completion of a modification which causes a Mortgage Loan to be a
Rehabilitated Mortgage Loan, (C) a Final Recovery Determination, or (D) 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 be substantially in the form of Exhibit O
and shall contain a narrative description for each Specially Serviced Mortgage
Loan of the current status of such 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 O.
(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 and the Master Servicer no later than the ten Business Day following
such Final Recovery Determination.
(c) The Special Servicer, for each Specially Serviced Mortgage Loan, shall
provide to the Master Servicer on or prior to the Determination Date for each
month, a Special Servicer Monthly Report substantially in the form of Exhibit P
or in such electronic format as is mutually acceptable to the Master Servicer
and the Special Servicer. The Master Servicer may use such reports or
information contained therein to prepare its reports and may, at its option,
forward such Special Servicer Monthly Reports directly to the Trustee, the
Depositor and the Rating Agencies.
(d) The Special Servicer shall provide to the Master Servicer at the
reasonable request in writing of the Master Servicer any information in its
possession with respect to the Specially Serviced Mortgage Loans which the
Master Servicer shall require in order for the Master Servicer to comply with
its obligations under this Agreement; provided that the Special Servicer shall
not be required to take any action or provide any information that the Special
Servicer determines will result in any material cost or expense to which it is
not entitled to reimbursement hereunder or will result in any material liability
for which it is not indemnified hereunder. The Master Servicer will provide the
Special Servicer at the request of the Special Servicer any information in its
possession with respect to the Mortgage Loans which the Master Servicer shall
require in order for the Special Servicer to comply with its obligations under
this Agreement.
(e) Not later than 20 days after each Special Servicer Remittance Date,
the Special Servicer shall forward to the Master Servicer a statement setting
forth the status of each REO Account as of the close of business on such Special
Servicer Remittance Date, stating that
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all remittances required to be made by it as required by this Agreement to be
made by the Special Servicer have been made (or, if any required distribution
has not been made by the Special Servicer, specifying the nature and status
thereof) and showing, for the period from the day following the preceding
Special Servicer Remittance Date to such Special Servicer Remittance Date, the
aggregate of deposits into and withdrawals from each REO Account for each
category of deposit specified in Section 5.1 of this Agreement and each category
of withdrawal specified in Section 5.2 of this Agreement.
(f) The Special Servicer shall use reasonable efforts to obtain and, to
the extent obtained, to deliver to the Master Servicer and the Operating
Adviser, on or before April 15 of each year, commencing with April 15, 1999, (i)
copies of the prior year operating statements and quarterly statements, if
available, for each Mortgaged Property underlying a Specially Serviced Mortgage
Loan or REO Property as of its fiscal year end, provided that either the related
Mortgage Note or Mortgage requires the Mortgagor to provide such information, or
if the related Mortgage Loan has become an REO Property, (ii) a copy of the most
recent rent roll available for each Mortgaged Property, and (iii) a table,
setting forth the Debt Service Coverage Ratio and occupancy with respect to each
Mortgaged Property covered by the operating statements delivered above.
(g) The Special Servicer shall deliver to the Master Servicer, the
Depositor and the Trustee all such other information with respect to the
Specially Serviced Mortgage Loans at such times and to such extent as the Master
Servicer, the Trustee or Depositor may from time to time reasonably request;
provided, however, that the Special Servicer shall not be required to produce
any ad hoc non-standard written reports with respect to such Mortgage Loans
except if any Person (other than the Trustee) requesting such report pays a
reasonable fee to be determined by the Special Servicer.
(h) The Special Servicer shall deliver a written Inspection Report of each
Specially Serviced Mortgage Loan in accordance with Section 9.4(b).
(i) The Special Servicer shall provide as soon as practicable after a
Mortgage Loan becomes a Specially Serviced Mortgage Loan, to the Master Servicer
its estimate of the net recoverable amount to the Certificateholders and
anticipated expenses in connection therewith (and a general description of the
plan to achieve such recovery) of such Specially Serviced Mortgage Loan and
other information reasonably requested by the Master Servicer. The Special
Servicer shall update such information on a quarterly basis.
SECTION 9.33 SPECIAL SERVICER TO COOPERATE WITH THE MASTER SERVICER.
(a) The Special Servicer shall furnish on a timely basis such reports,
certifications, and information as are reasonably requested by the Master
Servicer to enable it to perform its duties under this Agreement; provided that
no such request shall (i) require or cause the Special Servicer to violate the
Code, any provision of this Agreement, including the Special Servicer's
obligation to act in accordance with the servicing standards set forth in this
Agreement and to maintain the REMIC status of any REMIC Pool or (ii) expose the
Special Servicer, the Trust, the Fiscal Agent or the Trustee to liability or
materially expand the scope of the Special Servicer's responsibilities under
this Agreement. In addition, the Special Servicer shall notify
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the Master Servicer of all expenditures incurred by it with respect to the
Specially Serviced Mortgage Loans which are required to be made by the Master
Servicer as Servicing Advances as provided herein, subject to the provisions of
Section 4.4 hereof. The Special Servicer shall also remit all invoices relating
to Servicing Advances promptly upon receipt of such invoices.
(b) The Special Servicer shall from time to time make reports,
recommendations and analyses to the Operating Adviser with respect to the
following matters, the expense of which shall be charged to the Operating
Adviser, but in no event shall such costs be an expense of the Trust:
(i) whether the foreclosure of a Mortgaged Property relating to a
Specially Serviced Mortgage Loan would be in the best economic interest of
the Trust;
(ii) if the Operating Adviser elects to proceed with a foreclosure,
whether a deficiency judgment should or should not be sought because the
likely recovery will or will not be sufficient to warrant the cost, time
and exposure of pursuing such judgment;
(iii) whether the waiver or enforcement of any "due-on-sale" clause
or "due-on-encumbrance" clause contained in a Mortgage Loan or a Specially
Serviced Mortgage Loan is in the best economic interest of the Trust;
(iv) in connection with entering into an assumption agreement from
or with a person to whom a Mortgaged Property securing a Specially
Serviced Mortgage Loan has been or is about to be conveyed, or to release
the original Mortgagor from liability upon a Specially Serviced Mortgage
Loan and substitute a new Mortgagor, and whether the credit status of the
prospective new Mortgagor is in compliance with the Special Servicer's
regular commercial mortgage origination or servicing standard;
(v) in connection with the foreclosure on a Specially Serviced
Mortgage Loan secured by a Mortgaged Property which is not in compliance
with CERCLA, or any comparable environmental law, whether it is in the
best economic interest of the Trust to bring the Mortgaged Property into
compliance therewith and an estimate of the cost to do so; and
(vi) with respect to any proposed modification (which shall include
any proposed release, substitution or addition of collateral), extension,
waiver, amendment, discounted payoff or sale of a Mortgage Loan, prepare a
summary of such proposed action and an analysis of whether or not such
action is reasonably likely to produce a greater recovery on a present
value basis than liquidation of such Mortgage Loan; such analysis shall
specify the basis on which the Special Servicer made such determination,
including the status of any existing material default or the grounds for
concluding that a payment default is imminent.
SECTION 9.34 CERTAIN REMIC LIMITATIONS ON MODIFICATION OF SPECIALLY
SERVICED MORTGAGE LOANS. Notwithstanding anything to the contrary in this
Agreement, the Special Servicer shall not permit any modification of any Money
Term of a Specially Serviced Mortgage Loan unless (i) the Special Servicer shall
have received a Nondisqualification Opinion
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or a ruling from the Internal Revenue Service 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 Regulations Sec 1.860G-2(B) of the Code),
the reasonable cost of which opinion shall be an expense of the Trust or (ii)
such modification meets the requirements set forth in Section 9.5.
SECTION 9.35 [RESERVED].
SECTION 9.36 SALE OF DEFAULTED MORTGAGE LOANS AND REO PROPERTIES.
(a) The Special Servicer may, with the written approval of the Operating
Adviser as more fully specified in Section 9.39, subject to the limitations in
paragraph (d) below, and shall, at the written direction of the Operating
Adviser (subject in each case to the limitations set forth in Section 9.39),
offer to sell for cash to any Person, for an amount equal to the Purchase Price
therefor, 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 9.15
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 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 bid received from any Person other than the Master Servicer, the Special
Servicer or the Operating Adviser, if any, that the Special Servicer determines
to be a fair price for the Defaulted Mortgage Loan or REO Property. However, the
Special Servicer may be the purchaser of a Defaulted Mortgage Loan or a related
REO Property only if the price at which the Special Servicer purchases is at
least equal to the highest bid and it has received at least three bids from
non-affiliated parties. Notwithstanding anything to the contrary herein, neither
the Trustee, in its individual capacity, nor any of its Affiliates may bid for
or purchase any Defaulted Mortgage Loan or any REO Property. The Special
Servicer shall not accept a bid from Wells Fargo Bank, National Association,
either Seller or the Depositor unless such bid is in the good faith judgment of
the Special Servicer, equal to (and not greater than) the then market value of
such REO Property or the fair price of the Defaulted Mortgaged Loan.
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) of a Person other than an Interested Person or the Operating Adviser, if
any, 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
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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, after
consultation with the Operating Adviser, if any, shall determine no later than
six months prior to the end of the two-year period referred in Section 9.15 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 after consultation with the Operating
Adviser, if any, 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 9.15.
In determining whether any bid received from an Interested Person or
whether the price to be paid by the Special Servicer or any Affiliate thereof
represents a fair price or market value for any Defaulted Mortgage Loan or any
REO Property, the Special Servicer may rely conclusively on the opinion of the
value of such REO Property by an independent MAI-designated appraiser selected
by the Trustee at the expense of the Trust. In determining whether any bid
constitutes a fair price or market value for any Defaulted Mortgage Loan or any
REO Property, the Special Servicer shall take into account, among other factors,
the period and amount of any delinquency on the affected Defaulted Mortgage
Loan, the physical condition of the related Mortgaged Property or such REO
Property, the state of the local economy and the Trust's obligation to dispose
of any REO Property within the two-year period specified in Section 9.15.
(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 Certificate 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 the
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Operating Adviser that would cause it to violate any term or provision of this
Agreement, including the REMIC Provisions and the Servicing Standard.
SECTION 9.37 OPERATING ADVISER; ELECTIONS.
(a) In accordance with Section 9.37(c), the Certificateholders
representing more than 50% of the Certificate Balance of the Certificates of the
then Controlling Class may elect the operating adviser (the "Operating
Adviser"). The Operating Adviser shall be elected for the purpose of advising,
approving and directing the actions of the Special Servicer specified herein in
respect of the Specially Serviced Mortgage Loans subject to the limitations set
forth in this Agreement.
(b) An election of an Operating Adviser also shall be held upon the
resignation or removal of the Person acting as Operating Adviser. Notice of the
meeting of the Holders of the Controlling Class shall be mailed or delivered to
each Holder by the Trustee 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. A majority of Certificate Balance of the Certificates of
the then Controlling Class, present in person or represented by proxy, shall
constitute a quorum for the nomination of an Operating Adviser. At the meeting,
each Holder shall be entitled to nominate one Person to act as Operating
Adviser. The Trustee shall cause the election of the Operating Adviser to be
held as soon thereafter as is reasonably practicable.
(c) Each Holder of the 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 Certificate Balance of the Certificates of the then
Controlling Class which are cast for a single Person, such Person shall be, upon
such Person's acceptance, the Operating Adviser. In the event that an Operating
Adviser shall have resigned or been removed and a successor Operating Adviser
shall not have been elected, there shall be no Operating Adviser.
(d) The Operating Adviser may be removed at any time by the written vote,
copies of which must be delivered to the Trustee, of more than 50% of the
Certificate Balance of the Holders of the Certificates of the then Controlling
Class.
(e) The Trustee shall act as judge of each election and, absent manifest
error, the determination of the results of any election by the Trustee shall be
conclusive. Notwithstanding any other provisions of this Section 9.37, the
Trustee may make such reasonable regulations as it may deem advisable for any
election.
(f) Notwithstanding any provision of this Section 9.37 or any other
provision of this Agreement to the contrary, at any time that the Special
Servicer has been elected as Operating Adviser or no Operating Adviser has been
elected, (i) the Special Servicer shall not be required to deliver notices or
information to, or obtain the consent or approval of, the Operating Adviser and
(ii) to the extent any Person other than the Special Servicer is otherwise
required hereunder to provide notices or information to, or obtain the consent
or approval of, the
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Operating Adviser, such Person shall be required to provide such notices or
information to, or obtain the consent or approval of, the Special Servicer.
SECTION 9.38 LIMITATION ON LIABILITY OF OPERATING ADVISER. The Operating
Adviser shall have no liability to the Trust or the Certificateholders for any
action taken, or for refraining from the taking of any action, in good faith and
using reasonable business judgment pursuant to this Agreement, or using
reasonable business judgment. By its acceptance of a Certificate, each
Certificateholder (and Certificate Owner) confirms its understanding that the
Operating Adviser may take actions that favor the interests of one or more
Classes of the Certificates over other Classes of the Certificates and that the
Operating Adviser may have special relationships and interests that conflict
with those of Holders of some Classes of the Certificates and each
Certificateholder (and Certificate Owner) agrees to take no action against the
Operating Adviser based upon such special relationship or conflict.
Notwithstanding any term in this Agreement, the Special Servicer shall not be
entitled to indemnification from the Trust for any action taken by it at the
direction of the Operating Adviser which is in conflict with the Servicing
Standard.
SECTION 9.39 DUTIES OF OPERATING ADVISER. The Operating Adviser shall
advise the Special Servicer and, prior to the Special Servicer taking any of the
following actions, the Operating Adviser shall have approved such action in
writing within five Business Days. If such written approval has not been
received by the Special Servicer within five Business Days, then the Operating
Adviser's approval will be deemed to have been given:
(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 a Mortgage Loan for two years or less;
(iii) any proposed sale of a Defaulted Mortgage Loan (other than
upon termination of the Trust pursuant to Article X);
(iv) any determination to bring an REO Property into compliance with
Environmental Laws; and
(v) any acceptance of substitute or additional collateral for a
Mortgage Loan.
In addition, the Operating Adviser may direct the Trustee to remove the
Special Servicer at any time upon the appointment and 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, and
the Trustee shall have received (A) Rating Agency Confirmation from each Rating
Agency and (B) a Nondisqualification Opinion (which shall not be an expense of
the Trustee or the Trust).
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The Operating Adviser may direct the Special Servicer to take, or to
refrain from taking, such other actions as the Operating Adviser may deem
advisable or as to which provision is otherwise made herein; provided that no
direction pursuant to this Section 9.39 shall require or cause the Special
Servicer to violate any provision hereof, including, without limitation, the
REMIC Provisions and the Special Servicer's obligation to act in accordance with
the Servicing Standard, or expose the Trust or the Trustee to liability.
ARTICLE X
PURCHASE AND
TERMINATION OF THE TRUST
SECTION 10.1 TERMINATION OF TRUST UPON REPURCHASE OR LIQUIDATION OF ALL
MORTGAGE LOANS.
(a) The obligations and responsibilities of the Trustee created hereby
(other than the obligation of the Trustee to make payments to the Class R-I
Certificateholders and REMIC III Certificateholders as set forth in Section 10.2
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) or (iii) the termination of the Trust
pursuant to Section 10.1(c) below; 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) The Master Servicer shall give the Trustee notice of the date when the
Aggregate Certificate Balance of the Certificates, after giving effect to
distributions of principal made on the next Distribution Date, is less than or
equal to one percent (1%) of the initial Aggregate Certificate Balance of the
Certificates as of the Cut-Off Date. The Trustee shall promptly forward such
notice to the Depositor, the Master Servicer, the Special Servicer and the
Holders of the Class R-I Certificates, who in such priority (and in the case of
the Class R-1 Certificateholders, a majority of the Class R-1
Certificateholders), may purchase, in whole only, the Mortgage Loans and any
other property, if any, remaining in the Trust. If any party desires to exercise
such option, it will notify the Trustee who will notify any party with a prior
right to exercise such option. If any party that has been provided notice by the
Trustee notifies the Trustee within ten Business Days after receiving notice of
the proposed purchase that it wishes to purchase the assets of the Trust, then
such party (or, in the event that more than one of such parties notifies the
Trustee that it wishes to purchase the assets of the Trust, the party with the
first right to purchase the assets of the Trust) may purchase the assets of the
Trust in accordance with this Agreement. Upon receipt of the Termination Price
set forth below, the Trustee shall promptly release or cause to be released to
the Master Servicer for the benefit of the Depositor, the Holder of the majority
of the Class R-I Certificates, the Special Servicer or the Master Servicer, as
the case may be, the Mortgage Files pertaining to the Mortgage Loans. The
"Termination Price" shall equal 100% of the aggregate Principal Balances of the
Mortgage Loans (other than Mortgage Loans as to which a Final Recovery
Determination has been made)
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on the day of such purchase plus accrued and unpaid interest thereon at the
applicable Mortgage Rates (or Mortgage Rates less (x) the Servicing Fee Rate, if
the Master Servicer is the Purchaser, or (y) the Special Servicing Standby Fee
Rate, if the Special Servicer is the Purchaser) with respect to the Mortgage
Loans to the Due Date for each Mortgage Loan ending in the Collection Period
with respect to which such purchase occurs, plus unreimbursed Advances and
interest on such unreimbursed Advances at the Advance Rate, and the fair market
value of any other property remaining in REMIC I; provided, however, that if
Wells Fargo is the purchaser, the Termination Price shall be the greater of the
foregoing amount and the fair market value of the Mortgage Loans and any other
property remaining in REMIC I. The Trustee shall consult with the Placement
Agents and the Underwriters or their respective successors, as advisers, in
order for the Trustee to determine whether the fair market value of the property
constituting the Trust has been offered; provided that, if either Placement
Agent or Underwriter or an Affiliate of the Placement Agents or Underwriters is
exercising its right to purchase the Trust assets, the Trustee shall consult
with the Operating Adviser in order for the Trustee to determine the fair market
value, provided that the Operating Adviser is not an Affiliate of the Depositor,
the Class R-I Holder, the Special Servicer or the Master Servicer, or a third
party chosen by the Depositor unless the Depositor is bidding for such property,
or the Trustee (the fees and expenses of which shall be paid for by buyer of the
property). As a condition to the purchase of the Trust pursuant to this Section
10.1(b), the Depositor, the Holder of the majority of the Class R-I
Certificates, the Special Servicer or the Master Servicer, as the case may be,
must deliver to the Trustee an Opinion of Counsel, which shall be at the expense
of the Depositor, such Holders, the Special Servicer or the Master Servicer, as
the case may be, 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.
(c) If at any time the Holders of the Class R-I Certificates own 100% of
the REMIC I Interests such Holders may terminate REMIC I (which will in turn
result in the termination of REMIC II and REMIC III) upon (i) the delivery to
the Trustee and the Depositor of an Opinion of Counsel (which opinion shall be
at the expense of such Holders) stating that such termination will be a
"qualified liquidation" of each REMIC under Section 860F of the Code, and (ii)
the payment of any and all costs associated with such termination. Such
termination 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 by first class mail to the Rating
Agencies, the Class R-I and REMIC III Certificateholders mailed no later than
ten days prior to the date of such termination. Such notice shall specify (A)
the Distribution Date upon which final distribution on the Class R-I, Class R-II
and REMIC III Certificates will be made, and upon presentation and surrender of
the Class R-I, Class R-II and REMIC III Certificates at which office or agency
of the Trustee therein specified, 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 Class R-I, Class R-II, and REMIC III
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 Holders of the Class R-I, Class R-II and REMIC
III Certificates. Upon any
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such termination, the duties of the Certificate Registrar with respect to the
Class R-I, Class R-II and REMIC III Certificates shall terminate and the Trustee
shall terminate, or request the Master Servicer to terminate, the Certificate
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 Class R-I, Class R-II and REMIC III
Certificateholders in trust without interest pending such payment.
(b) In the event that all of the Holders do not surrender their
certificates evidencing the Class R-I, Class R-II and REMIC III 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
Class R-I, Class R-II and REMIC III Certificateholders to surrender their
certificates evidencing the Class R-I, Class R-II and REMIC III Certificates for
cancellation and receive the final distribution with respect thereto. If within
one year after the second notice any Class R-I, Class R-II and REMIC III
Certificates shall not have been surrendered for cancellation, the Trustee may
take appropriate steps to contact the remaining Class R-I, Class R-II and REMIC
III Certificateholders concerning surrender of such 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 Class R-I, Class R-II and
REMIC III Certificates shall not have been surrendered for cancellation, the
Trustee shall, subject to applicable state law relating to escheatment, hold all
amounts distributable to such Holders for the benefit of such Holders. No
interest shall accrue on any amount held by the Trustee and not distributed to a
Class R-I, Class R-II and REMIC III Certificateholders 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) The Trust and each REMIC shall be terminated in accordance with the
following additional requirements, unless at the request of the Master Servicer
or the Class R-I Certificateholders, as the case may be, the Trustee seeks, and
subsequently receives, an Opinion of Counsel (at the expense of the Master
Servicer or the Class R-I Certificateholders, as the case may be), 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" on any REMIC 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 time of the making of the final
payment on the REMIC III Certificates the Master Servicer shall prepare
and the Trustee on behalf of the REMIC I Interests, REMIC II or REMIC III
shall adopt a plan of complete liquidation of the REMIC I Pool, meeting
the requirements of a qualified liquidation under the REMIC Provisions,
which plan shall be signed by the Trustee; provided that the Trustee shall
have no obligation to determine the accuracy or adequacy of such plan of
liquidation other than that such plan of liquidation meets the
requirements outlined in Sections 10.1, 10.2 and 10.3;
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(ii) At or after the time of adoption of such a plan of complete
liquidation and at or prior to the time of making of the final payment on
the REMIC III Certificates, the Trustee or the Paying Agent shall sell all
of the assets of the Trust for cash at the Termination Price; provided
that if the Holders of the Class R-I Certificates are purchasing the
assets of the Trust, the amount to be paid by such Holders may be paid net
of the amount to be paid to such Holders as final distributions on any
Certificates held by such Holders;
(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, (A) to the Holders of the Class R-I Certificates
all assets of REMIC I remaining after such final payment of the REMIC
Interests, (B) to the Holders of the Class R-II Certificates all remaining
assets of REMIC II and (C) to the Holders of the Class R-III Certificates
all remaining assets of REMIC III (in each case other than cash retained
to meet claims), and the Trust shall terminate at that time; and
(iv) In no event may the final payment on the REMIC I Regular
Interests, REMIC II Regular Interests or REMIC Regular Certificates or the
final distribution or credit to the Holders of the Residual Certificates,
respectively, be made after the 89th day from the date on which the plan
of complete liquidation is adopted.
(b) By their acceptance of the Class R-I, Class R-II or Class R-III
Certificates, respectively, the Holders thereof hereby (i) authorize the Trustee
to take such action as may be necessary to adopt a plan of complete liquidation
of the REMIC Pool and (ii) agree to take such other action as may be necessary
to adopt a plan of complete liquidation of the Trust upon the written request of
the Depositor, which authorization shall be binding upon all successor Class
R-I, Class R-II and Class R-III Certificateholders, respectively.
(c) On the final federal income tax return for each REMIC Pool, the
Trustee shall attach a statement specifying the date of the adoption of the plan
of liquidation.
ARTICLE XI
RIGHTS OF CERTIFICATEHOLDERS
The provisions of this Article XI shall apply to each of the REMIC I
Regular Interests, REMIC II Regular Interests, REMIC Regular Certificateholders
and Residual Certificateholders to the extent appropriate.
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.
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(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 or operation and
management of the Trust, or the obligations of the parties hereto, nor shall
anything herein set forth, or contained in the terms of the Certificates, be
construed so as to constitute the Certificateholders from time to time as
partners or members of an association, nor shall any Certificateholder be under
any liability to any third person by reason of any action taken by the parties
to this Agreement pursuant to any provision hereof.
(c) No Certificateholder, solely by virtue of its status as
Certificateholder, shall have any right by virtue or by availing of any
provision of this Agreement to institute any suit, action or proceeding in
equity or at law upon or under or with respect to this Agreement unless the
Holders of Certificates evidencing not less than 50% of the Aggregate Principal
Amount of the Certificates then outstanding shall have made written request upon
the Trustee to institute such action, suit or proceeding in its own name as
Trustee hereunder and shall have offered to the Trustee such reasonable
indemnity as it may require against the cost, expenses and liabilities to be
incurred therein or thereby, and the Trustee, for sixty days after its receipt
of such notice, request and offer of indemnity, shall have neglected or refused
to institute any such action, suit or proceeding and no direction inconsistent
with such written request has been given the Trustee during such sixty-day
period by such Certificateholders; it being understood and intended, and being
expressly covenanted by each Certificateholder with every other
Certificateholder and the Trustee, that no one or more Holders of Certificates
shall have any right in any manner whatever by virtue or by availing of any
provision of this Agreement to affect, disturb or prejudice the rights of the
Holders of any other of such Certificates, or to obtain or seek to obtain
priority over or preference to any other such Holder, or to enforce any right
under this Agreement, except in the manner herein provided and for the benefit
of all Certificateholders. For the protection and enforcement of the provisions
of this Section, each and every Certificateholder and the Trustee shall be
entitled to such relief as can be given either at law or in equity.
SECTION 11.2 ACCESS TO LIST OF HOLDERS.
(a) If the Trustee is not acting as Certificate Registrar, the Certificate
Registrar will furnish or cause to be furnished to the Trustee, within fifteen
days after receipt by the Certificate Registrar of a request by the Trustee in
writing, a list, in such form as the Trustee may reasonably require, of the
names and addresses of the Certificateholders of each Class as of the most
recent Record Date.
(b) If the Depositor, the Operating Adviser, the Special Servicer, the
Master Servicer or three or more Holders (hereinafter referred to as
"applicants," with a single Person which (together with its Affiliates) is the
Holder of more than one Class of Certificates being viewed as a single
"applicant" for these purposes) apply in writing to the Trustee, and such
application states that the applicants desire to communicate with other Holders
with respect to their rights under this Agreement or under the Certificates and
is accompanied by a copy of the communication which such applicants propose to
transmit, then the Trustee shall, within five Business Days after the receipt of
such application, send, at such Person's expense, the written
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communication proffered by the applicants to all Certificateholders at their
addresses as they appear in the Certificate Register.
(c) Every Holder, by receiving and holding a Certificate, agrees with the
Depositor, the Certificate Registrar and the Trustee that neither the Depositor,
the Certificate Registrar nor the Trustee shall be held accountable by reason of
the disclosure of any such information as to the names and addresses of the
Certificateholders hereunder, regardless of the source from which such
information was derived.
SECTION 11.3 ACTS OF HOLDERS OF CERTIFICATES.
(a) Any request, demand, authorization, direction, notice, consent, waiver
or other action provided by this Agreement to be given or taken by Holders may
be embodied in and evidenced by one or more instruments of substantially similar
tenor signed by such Holders in person or by agent duly appointed in writing;
and, except as herein otherwise expressly provided, such action shall become
effective when such instrument or instruments are delivered to the Trustee and,
where it is hereby expressly required, to the Depositor. Such instrument or
instruments (as the action embodies therein and evidenced thereby) are herein
sometimes referred to as an "Act" of the Holders signing such instrument or
instruments. Proof of execution of any 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.
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ARTICLE XII
REMIC ADMINISTRATION
The provisions of this Article XII shall apply to each REMIC Pool.
SECTION 12.1 REMIC ADMINISTRATION.
(a) An election will be made by the Trustee to treat the segregated pool
of assets consisting of the Mortgage Loans, such amounts as shall from time to
time be held in the Certificate Account and the Distribution Account, the
Insurance Policies and any REO Properties as a REMIC under the Code. Such
election will be made on Form 1066 or other appropriate federal tax or
information return or any appropriate state return for the taxable year ending
on the last day of the calendar year in which the REMIC I Interests are issued.
For purposes of such election, the Corresponding REMIC I Interests shall each be
designated as a separate class of "regular interests" in the REMIC I and the
Class R-I Certificates shall be designated as the sole class of "residual
interests" in the REMIC I. The Trustee shall not permit the creation of any
"interests" (within the meaning of Section 860G of the Code) in any of the
REMICs other than the REMIC I, REMIC II and REMIC III Regular Interests and the
Residual Certificates.
An election will be made by the Trustee 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 Interest is 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 the "residual interests"
in REMIC II.
An election will be made by the Trustee to treat the segregated pool of
assets consisting of the REMIC II Regular Interests as a REMIC under the Code.
Such election will be made on Form 1066 or other appropriate federal tax or
information return or any appropriate state return for the taxable year ending
on the last day of the calendar year in which the REMIC III Certificates are
issued. For purposes of such election, the Class A-1, Class A-2, Class X-1,
Class X-2, Class B, Class C, Class D, Class E, Class F, Class G, Class H, Class
J and Class K 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.
(b) The Closing Date is hereby designated as the "Startup Day" of each
REMIC Pool within the meaning of Section 860G(a)(9) of the Code.
(c) The Trustee shall pay all routine tax related expenses (not including
any taxes, however denominated, including any additions to tax, penalties and
interest) of each REMIC Pool, excluding any professional fees or extraordinary
expenses related to audits or any administrative or judicial proceedings with
respect to each REMIC Pool that involve the Internal Revenue Service or state
tax authorities.
(d) The Trustee shall cause to be prepared, signed, and timely filed with
the Internal Revenue Service, on behalf of each REMIC Pool, an application for a
taxpayer
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identification number for such REMIC Pool on Internal Revenue Service Form SS-4.
The Trustee, upon receipt from the Internal Revenue Service of the Notice of
Taxpayer Identification Number Assigned, shall promptly forward a copy of such
notice to the Depositor and the Master Servicer. The Trustee shall prepare and
file Form 8811 on behalf of each REMIC Pool and shall designate an appropriate
Person to respond to inquiries by or on behalf of Certificateholders for
original issue discount and related information in accordance with applicable
provisions of the Code.
(e) The Trustee shall prepare and file all of each REMIC Pool's federal
and state income or franchise tax and information returns as such REMIC Pool
direct representative; the expenses of preparing such returns shall be borne by
the Trustee and the cost of filing such returns shall be borne by the applicable
REMIC Pool, except that if additional state tax returns are required to be filed
in more than three states, the Trustee shall be entitled, with respect to any
such additional filings, to (i) be paid a reasonable fee and (ii) receive its
reasonable costs and expenses, both as amounts reimbursable pursuant to Section
5.2(a)(i) hereof. The Depositor, the Master Servicer and the Special Servicer
shall 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 its possession, which the
Depositor or the Master Servicer and the Special Servicer has received or
prepared by virtue of its role as Depositor or Master Servicer and the Special
Servicer hereunder and 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 cost or expense
(including attorneys' fees) incurred by them resulting from any error resulting
from bad faith, negligence, or willful malfeasance of the Depositor in providing
any information for which the Depositor is responsible for preparing. The Master
Servicer and the Special Servicer shall indemnify the Trustee, the Fiscal Agent
and the Depositor for any liability or assessment against the Trustee, the
Fiscal Agent, the Depositor or any REMIC Pool 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 or 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 Master Servicer, the Depositor or any REMIC
Pool for any expense incurred by the Master Servicer, the Depositor or any REMIC
Pool 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 any REMIC Pool under this
Section 12.1(e). Any such indemnification shall survive the resignation or
termination of the Master Servicer, the Special Servicer, the Trustee and the
Fiscal Agent or the termination of this Agreement.
(f) The Trustee shall perform on behalf of each REMIC 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
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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, the transferor of a Residual Certificate, to a Disqualified
Organization or to an agent that has acquired a Residual Certificate on behalf
of a Disqualified Organization) such information as is necessary for the
application of any tax relating to the transfer of a Residual Certificate to any
Disqualified Organization and (ii) to the Certificateholders such information or
reports as are required by the Code or REMIC Provisions.
(g) The Trustee shall forward to the Depositor copies of quarterly and
annual REMIC tax returns and Form 1099 information returns and such other
information within the control of the Trustee as the Depositor may reasonably
request in writing. Moreover, the Trustee shall forward to each
Certificateholder such forms and furnish such information within its control as
are required by the Code to be furnished to them, shall prepare and file with
the appropriate state authorities as may to the actual knowledge of a
Responsible Officer of the Trustee be required by applicable law and shall
prepare and disseminate to Certificateholders Forms 1099 (or otherwise furnish
information within the control of the Trustee) to the extent required by
applicable law. The Trustee will make available to any Certificateholder any tax
related information required to be made available to Certificateholders pursuant
to the Code and any regulations thereunder.
(h) The Holder of more than 50% of the Percentage Interests in Class R-I,
Class R-II and Class R-III Certificates, respectively (or of the greatest
percentage of such Class R-I, Class R-II and Class R-III Certificates if no
Holder holds more than 50% thereof), shall be the applicable REMIC's Tax Matters
Person. 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
regulations prohibits the Trustee from signing any applicable Internal Revenue
Service, court or other administrative documents or from acting as Tax Matters
Person (as an agent or otherwise), the Trustee shall take whatever action is
necessary for the signing of such documents and designation of a Tax Matters
Person, including the designation of such Residual Certificateholder. 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 this Agreement), if it shall
have reasonable grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured to it.
(i) The Trustee, the Holders of the Residual Certificates, the Master
Servicer and the Special Servicer shall each exercise reasonable care, to the
extent within its control, and with respect to each of the Trustee, the Master
Servicer and the Special Servicer, within the scope of its express duties, and
shall each act in accordance with this Agreement and the REMIC Provisions in
order to create and maintain the status of each REMIC Pool as a REMIC or, as
appropriate, adopt a plan of complete liquidation.
(j) The Trustee, the Master Servicer, the Special Servicer, the Fiscal
Agent and the Holders of Residual Certificates shall not take any action or fail
to take any action or
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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, 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 Code Section 860F(a)(2)) unless the
Trustee has received an Opinion of Counsel (at the expense of the party seeking
to take such action) to the effect that the contemplated action will not
endanger such status or result in the imposition of such a tax. Any action
required under this section which would result in an unusual or unexpected
expense shall be undertaken at the expense of the party seeking the Trustee or
the Holders of the Residual Certificates to undertake such action.
(k) In the event that any tax is imposed on REMIC I, REMIC II or REMIC
III, including, without limitation, "prohibited transactions" taxes as defined
in Section 860F(a)(2) of the Code, any tax on "net income from foreclosure
property" as defined in Section 860G(c) of the Code, any taxes on contributions
to REMIC I, REMIC II or REMIC III after the Startup Day pursuant to Section
860G(d) of the Code, and any other tax imposed by the Code or any applicable
provisions of state or local tax laws (other than any tax permitted to be
incurred by the Special Servicer pursuant to Section 9.14(e)), 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 IX or this Article XII; (iii) the Master Servicer, if
such tax arises out 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 9.14(e) shall be charged to and paid by 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 Trustee out of amounts on
deposit in the Distribution Account.
(l) The Trustee and, to the extent that records are maintained by the
Master Servicer or the Special Servicer in the normal course of its business,
the Master Servicer and the Special Servicer 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. Notwithstanding anything to the contrary
contained herein, except to the extent provided otherwise in the Mortgage Loans
or in the Mortgages, all amounts collected on the Mortgage Loans shall, for
federal income tax purposes, be allocated first to interest due and payable on
the Mortgage Loans (including interest on overdue interest, other than
additional interest at a penalty rate payable following a default). The books
and records must be sufficient concerning the nature and amount of each REMIC
Pool's investments to show that such REMIC Pool has complied with the REMIC
Provisions.
(m) Neither the Trustee, the Master Servicer, nor the Special Servicer
shall enter into any arrangement by which any REMIC Pool will receive a fee or
other compensation for services.
(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
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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.
The Trustee agrees that all such information or data so obtained by it are
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
its rights and obligations under this Agreement.
(o) At all times as may be required by the Code, the Master Servicer will
to the extent within its control and the scope of its duties more specifically
set forth herein, maintain substantially all of the assets of REMIC I 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.
(p) Solely for the purposes of Section 1.860G-1(a)(4)(iii) of the Treasury
Regulations, the "latest possible maturity date" by which the Certificate
Balance of each Class of Certificates representing a regular interest in the
REMIC would be reduced to zero is March 15, 2030, which is the Final Rated
Distribution Date.
SECTION 12.2 PROHIBITED TRANSACTIONS AND ACTIVITIES. Neither the Trustee,
the Master Servicer nor the Special Servicer shall permit the sale, disposition
or substitution of any of the Mortgage Loans (except in a disposition pursuant
to (i) the foreclosure or default of a Mortgage Loan, (ii) the bankruptcy or
insolvency of any REMIC Pool, (iii) the termination of any REMIC Pool in a
"qualified liquidation" as defined in Section 860F(a)(4) of the Code, or (iv) a
substitution pursuant to Article II hereof), nor acquire any assets for the
Trust, except as
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provided in Article II hereof, nor sell or dispose of any investments in the
Certificate 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 disposition, acquisition, substitution, or acceptance will not (A)
affect adversely the status of any REMIC Pool as a REMIC or of the REMIC
Certificates, other than the Residual Certificates, 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 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 (i) 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 Treas. Reg. Sec. 1.860G-2(B) of the Code) or (ii) such modification meets the
requirements set forth in Sections 8.15 or 9.5.
SECTION 12.4 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 for any such Losses attributable to the action or inaction of the
Master Servicer, the Special Servicer, the Fiscal Agent, the Depositor or the
Holders of such Residual Certificates nor for any such Losses resulting from any
actions or failure to act based upon reliance on an Opinion of Counsel or from
misinformation provided by the Master Servicer, the Special Servicer, the Fiscal
Agent, the Depositor or such Holders of the Residual Certificates on which the
Trustee has relied. The foregoing shall not be deemed to limit or restrict the
rights and remedies of the Holders of the Residual Certificates now or hereafter
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.
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ARTICLE XIII
MISCELLANEOUS PROVISIONS
SECTION 13.1 BINDING NATURE OF AGREEMENT. This Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective
successors and permitted assigns.
SECTION 13.2 ENTIRE AGREEMENT. This Agreement contains the entire
agreement and understanding between the parties hereto with respect to the
subject matter hereof, and supersedes all prior and contemporaneous agreements,
understandings, inducements and conditions, express or implied, oral or written,
of any nature whatsoever with respect to the subject matter hereof. The express
terms hereof control and supersede any course of performance or usage of the
trade inconsistent with any of the terms hereof.
SECTION 13.3 AMENDMENT.
(a) This Agreement may be amended from time to time by the parties
hereto, without notice to or the consent of any of the Holders, (i) to cure any
ambiguity, (ii) to cause the provisions herein to conform to or be consistent
with or in furtherance of the statements made with respect to the Certificates,
the Trust or this Agreement in the Private Placement Memorandum and in the
Prospectus Supplement, or to correct or supplement any provision herein which
may be inconsistent with any other provisions herein, (iii) to amend any
provision hereof to the extent necessary or desirable to maintain the status of
each REMIC Pool as a REMIC for the purposes of federal income tax law (or
comparable provisions of state income tax law), (iv) to make any other
provisions with respect to matters or questions arising under or with respect to
this Agreement not inconsistent with the provisions hereof, (v) to modify, add
to or eliminate the provisions of Article III relating to transfers of Residual
Certificates or (vi) any other amendment which does not adversely affect in any
material respect the interests of any Certificateholder (unless such
Certificateholder consents). No such amendment effected pursuant to clause (i),
(ii) or (iv) of the preceding sentence shall (A) adversely affect in any
material respect the interests of any Holder not consenting thereto, and no
amendment shall adversely affect the status of any REMIC Pool as a REMIC without
the consent of 100% of the Certificateholders or (B) adversely affect the status
of any REMIC Pool as a REMIC. Prior to entering into any amendment without the
consent of Holders pursuant to this paragraph, the Trustee may require an
Opinion of Counsel and a Nondisqualification Opinion (in the case of clauses
(i), (ii) and (iii), at the expense of the Depositor, and otherwise 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), to the effect that such amendment is
permitted under this paragraph. Any such amendment shall be deemed not to
adversely affect in any material economic respect any Holder if the Trustee
receives written confirmation from each Rating Agency that such amendment will
not cause such Rating Agency to reduce, qualify or withdraw the then current
rating assigned to any of the rated Certificates that were currently being rated
by the Rating Agencies (and any Opinion of Counsel requested by the Trustee in
connection with any such amendment may rely expressly on such confirmation as
the basis therefor). The placement of an "original issue discount" legend on, or
any change
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<PAGE> 190
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
agreement of the parties hereto (without the consent of the Certificateholders)
and with the written confirmation of the Rating Agencies that such amendment
would not cause the ratings on any Class of Certificates to be qualified,
withdrawn or downgraded; provided, however, that such amendment may not effect
any of the items set forth in clauses (i) through (iv) of the proviso in
paragraph (c) of this Section 13.3. The Trustee may request, at its option, to
receive a Nondisqualification Opinion and an Opinion of Counsel that any
amendment pursuant to this Section 13.3(b) is permitted by this Agreement at the
expense of the party requesting the amendment.
(c) This Agreement may also be amended from time to time by the parties
with the consent of the Holders of not less than 51% of the Aggregate
Certificate Balance of the Certificates then outstanding, 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; 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) reduce
the aforesaid percentages of Aggregate Certificate Percentage or Certificate
Balance, the Holders of which are required to consent to any such amendment
without the consent of all the Holders of each Class of Certificates affected
thereby, (iii) no such amendment shall eliminate the Master Servicer's, the
Special Servicer's, the Trustee's or the Fiscal Agent's obligation to Advance or
alter the Servicing Standard except as may be necessary or desirable to comply
with the REMIC Provisions or (iv) adversely affect the status of any REMIC Pool
as a REMIC for federal income tax purposes (as evidenced by a
Nondisqualification Opinion) without the consent of 100% of the
Certificateholders (including the Class R-I, Class R-II and Class R-III
Certificateholders); provided that no such amendment may modify Section 8.18 of
this Agreement without the approval of the Rating Agencies. The Trustee may
request, at its option, to receive a Nondisqualification Opinion and an Opinion
of Counsel that any amendment pursuant to this Section 13.3(c) is permitted by
this Agreement at the expense of the party requesting the amendment.
(d) The costs and expenses associated with any such amendment shall be
borne by the Depositor in the case the Trustee is the party requesting such
amendment or if pursuant to clauses (i), (ii) and (iii) of Section 13.3(a). In
all other cases, the costs and expenses shall be borne by the party requesting
the amendment.
(e) Promptly after the execution of any such amendment, the Trustee
shall furnish written notification of the substance of such amendment to each
Holder, the Depositor and to the Rating Agencies.
(f) It shall not be necessary for the consent of Holders under this
Section 13.3 to approve the particular form of any proposed amendment, but it
shall be sufficient if such consent shall approve the substance thereof. The
manner of obtaining such consents and of evidencing the authorization of the
execution thereof by Holders shall be in the affirmative and in writing and
shall be subject to such reasonable regulations as the Trustee may prescribe.
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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 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: Russell Rahbany, with a copy to: Morgan
Stanley Capital I Inc., 1585 Broadway, New York, New York 10036, Attention:
General Counsel; (B) in the case of the Trustee and the Fiscal Agent, at the
Corporate Trust Office; (C) in the case of the Master Servicer, Wells Fargo
Bank, National Association, 555 Montgomery Street, 17th Floor, San Francisco,
California 94111, Attention: Portfolio Manager, with a copy to Robert F.
Darling, Esq., Wells Fargo Bank, National Association, 111 Sutter Street, 20th
Floor, San Francisco, California 94104; or (D) in the case of the Special
Servicer, CRIIMI MAE Services Limited Partnership, 11200 Rockville Pike,
Rockville, Maryland 20852, Attention: Brian Hanson (with a copy to General
Counsel at such address); or as to each party such other address as may
hereafter be furnished by such party to the other parties in writing. Any notice
required or permitted to be mailed to a Holder shall be given by first class
mail, postage prepaid, at the address of such Holder as shown in the Certificate
Register. Any notice so mailed within the time prescribed in this Agreement
shall be conclusively presumed to have been duly given, whether or not the
Holder receives such notice.
SECTION 13.6 SEVERABILITY OF PROVISIONS. If any one or more of the
covenants, agreements, provisions or terms of this Agreement shall be for any
reason whatsoever held invalid, then such covenants, agreements, provisions or
terms shall be deemed severable from the remaining covenants, agreements,
provisions or terms of this Agreement and shall in no way affect the validity or
enforceability of the other provisions of this Agreement or of the Certificates
or the rights of the Holders thereof.
SECTION 13.7 INDULGENCES; NO WAIVERS. Neither the failure nor any delay
on the part of a party to exercise any right, remedy, power or privilege under
this Agreement shall operate as a waiver thereof, nor shall any single or
partial exercise of any right, remedy, power or privilege preclude any other or
further exercise of the same or of any other right, remedy, power or privilege,
nor shall any waiver of any right, remedy, power or privilege with respect to
any occurrence be construed as a waiver of such right, remedy, power or
privilege with respect to any other occurrence. No waiver shall be effective
unless it is in writing and is signed by the party asserted to have granted such
waiver.
SECTION 13.8 HEADINGS NOT TO AFFECT INTERPRETATION. The headings
contained in this Agreement are for convenience of reference only, and shall not
be used in the interpretation hereof.
SECTION 13.9 BENEFITS OF AGREEMENT. Nothing in this Agreement or in the
Certificates, express or implied, shall give to any Person, other than the
parties to this Agreement
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<PAGE> 192
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 Depositor shall give prompt notice to the Rating Agencies,
Special Servicer and 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) the Interim Certification required pursuant to Sections
2.2(b) and (c) hereof and the Final Certification required pursuant to
Section 2.2(c) hereof;
(iii) notice of the repurchase of any Mortgage Loan pursuant
to Section 2.3(b) hereof;
(iv) any resignation of the Master Servicer, Special Servicer,
Fiscal Agent, or the Trustee pursuant to this Agreement;
(v) the appointment of any successor to the Master Servicer,
Fiscal Agent, the Trustee or the Special Servicer pursuant to Section
7.14 hereof;
(vi) waiver of a due-on-sale clause as provided in Section
8.7;
(vii) waiver of a prohibition on subordinate liens on the
Mortgaged Properties; or
(viii) the making of a final payment pursuant to Section 10.3
hereof.
(b) All notices to the Rating Agencies shall be in writing and sent by
first class mail, telecopy or overnight courier, as follows:
If to DCR, to:
Duff & Phelps Credit Rating Co.
55 East Monroe Street
Chicago, Illinois 60603
Attention: Structured Finance -Commercial Real Estate Monitoring
Telecopy: (312) 263-2852
If to S&P, to:
Standard & Poor's Ratings Services
25 Broadway
New York, New York 10004
Attention: Real Estate Ratings Group, Surveillance Manager
Telecopy: (212) 412-0597
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<PAGE> 193
If to any other Rating Agency, at such address as shall be provided in
writing to the Depositor by such Rating Agency.
(c) The Trustee, or in the case of clauses (i) and (ii), the successor
trustee shall give prompt notice to the Rating Agencies of the occurrence of any
of the following events:
(i) the resignation or removal of the Trustee pursuant to
Section 7.6; or
(ii) the appointment of a successor trustee pursuant to
Section 7.7; or
(iii) the appointment of a successor Operating Adviser
pursuant to Section 9.37.
(d) The Master Servicer shall deliver to the Rating Agencies, the
Depositor and the Special Servicer reports prepared pursuant to this Agreement
(including the Special Servicer Reports in its possession prepared pursuant to
Section 9.32) and any other information as reasonably requested by the Rating
Agencies and the Depositor.
(e) Any notice or other document required to be delivered or mailed by
the Depositor, Master Servicer or 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 It is the express intent of the
parties hereto that the conveyance of the Mortgage Loans and related rights and
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, the Mortgage Loans or any related property is held to be
the property of the Depositor, or if for any other reason this Agreement is held
or deemed to create a security interest in the Mortgage Loans or any related
property, then this Agreement shall be deemed to be a security agreement; and
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, general intangibles, chattel paper,
instruments, documents, money, deposit accounts, certificates of
deposit, goods, letters of credit, advices of credit and investment
property consisting of, arising from or relating to any of the property
described in clauses (1)-(4) below: (1) the Mortgage Loans, including
the related Mortgage Notes, Mortgages, security agreements, and title,
hazard and other
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insurance policies identified on the Mortgage Loan Schedule, including
all Qualified Substitute Mortgage Loans, all distributions with respect
thereto payable on and after the Cut-Off Date, and the Mortgage Files;
(2) the Distribution Account, all REO Accounts, and the Certificate
Account, including all property therein and all income from the
investment of funds therein (including any accrued discount realized on
liquidation of any investment purchased at a discount); (3) the REMIC I
Regular Interests and the REMIC II Regular Interests; and (4) the
Mortgage Loan Purchase Agreements;
(B) All accounts, general intangibles, chattel paper,
instruments, documents, money, deposit accounts, certificates of
deposit, goods, letters of credit, advices of credit, investment
property, 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.
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 for purposes of
perfecting the security interest pursuant to the Uniform Commercial Code
(including, without limitation, Sections 9-115 and 9-305 thereof) as in force in
the relevant jurisdiction.
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,
securities intermediaries, bailees or agents of, or persons holding for, the
Trustee, as applicable, for the purpose of perfecting such security interest
under applicable law.
The Depositor and, at the Depositor's direction, the Master Servicer
and the Trustee, shall, to the extent consistent with this Agreement, take such
reasonable actions as may be necessary to ensure that, if this Agreement were
deemed to create a security interest in the property described above, such
security interest would be deemed to be a perfected security interest of first
priority under applicable law and will be maintained as such throughout the term
of the Agreement. The Master Servicer shall file, at the expense of the Trust as
an Additional Trust Expense, all filings necessary to maintain the effectiveness
of any original filings necessary under the Uniform Commercial Code as in effect
in any jurisdiction to perfect the Trustee's security interest in such property,
including without limitation (i) continuation statements, and (ii) such other
statements as may be occasioned by any transfer of any interest of the Master
Servicer or the Depositor in such property. 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.
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<PAGE> 195
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 as an Additional
Trust Expense, but only upon direction of the Depositor accompanied by an
Opinion of Counsel to the effect that such recordation materially and
beneficially affects the interests of the Certificateholders of the Trust.
SECTION 13.14 RATING AGENCY MONITORING FEES. The Master Servicer shall
promptly pay, when due, out of its own funds, all reasonable monitoring fees of
the Rating Agencies relating to the rating of the Certificates.
IN WITNESS WHEREOF, the Depositor, the Master Servicer, the Special
Servicer, the Trustee and the Fiscal Agent have caused their names to be signed
hereto by their respective officers thereunto duly authorized as of the day and
year first above written.
MORGAN STANLEY CAPITAL I INC.,
as Depositor
By: _________________________________
Name: Russell A. Rahbany
Title: Vice President
WELLS FARGO BANK, NATIONAL
ASSOCIATION, as Master Servicer
By: _________________________________
Name: Stewart E. McAdams
Title: Vice President
CRIIMI MAE SERVICES LIMITED
PARTNERSHIP, as Special Servicer
By: CRIIMI MAE SERVICES, INC.
its General Partner
By: ________________________________
Name:
Title:
188
<PAGE> 196
LASALLE NATIONAL BANK,
as Trustee
By: _______________________________
Name:
Title:
ABN AMRO BANK N.V., as Fiscal Agent
By: _______________________________
Name:
Title:
By: _______________________________
Name:
Title:
189
<PAGE> 197
STATE OF NEW YORK
) ss.:
COUNTY OF NEW YORK )
On this ___th day of March, 1998, before me, a notary public in and for
said State, personally appeared Russell A. Rahbany, personally known to me (or
proved to me on the basis of satisfactory evidence) to be the person who
executed the within instrument as 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
<PAGE> 198
STATE OF CALIFORNIA )
) ss.:
COUNTY OF SAN FRANCISCO )
On this ___th day of March, 1998, before me, a notary public in and for
said State, personally appeared Stewart E. McAdams, 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 of Wells Fargo Bank, National
Association, 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
<PAGE> 199
STATE OF )
) ss.:
COUNTY OF __________ )
On the ______ day of March, 1998, before me, a notary public in and for
said State, personally appeared ___________________ known to me to be a of
CRIIMI MAE SERVICES, INC., the general partner of CRIIMI MAE SERVICES LIMITED
PARTNERSHIP, one of the entities that executed the within instrument, and also
known to me to be the person who executed it as an officer of the general
partner on behalf of such entity, and acknowledged to me that such entity
executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
_______________________________
Notary Public
[Notarial Seal]
<PAGE> 200
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On this ___ day of March, 1998, before me, a notary public in and for
said State, personally appeared __________________, personally known to me (or
proved to me on the basis of satisfactory evidence) to be the person who
executed the within instrument as 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
<PAGE> 201
STATE OF ILLINOIS )
) ss.:
COUNTY OF COOK )
On this ___ day of March, 1998, before me, a notary public in and for
said State, personally appeared _________________, personally known to me (or
proved to me on the basis of satisfactory evidence) to be the person who
executed the within instrument as 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
<PAGE> 202
STATE OF ILLINOIS )
) ss.:
COUNTY OF COOK )
On this ___th day of March, 1998, before me, a notary public in and for
said State, personally appeared __________________, personally known to me (or
proved to me on the basis of satisfactory evidence) to be the person who
executed the within instrument as 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
<PAGE> 203
[Execution Copy]
MORGAN STANLEY CAPITAL I INC.,
AS DEPOSITOR,
AND
WELLS FARGO BANK, NATIONAL ASSOCIATION,
AS MASTER SERVICER,
AND
CRIIMI MAE SERVICES LIMITED PARTNERSHIP,
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
1998-WF1
<PAGE> 204
EXHIBITS
EXHIBIT A-1 [FORM OF CLASS A-1 CERTIFICATE]
EXHIBIT A-2 [FORM OF CLASS A-2 CERTIFICATE]
EXHIBIT A-3 [FORM OF CLASS B CERTIFICATE]
EXHIBIT A-4 [FORM OF CLASS C CERTIFICATE]
EXHIBIT A-5 [FORM OF CLASS D CERTIFICATE]
EXHIBIT A-6 [FORM OF CLASS E CERTIFICATE]
EXHIBIT A-7 [FORM OF CLASS F CERTIFICATE]
EXHIBIT A-8 [FORM OF CLASS G CERTIFICATE]
EXHIBIT A-9 [FORM OF CLASS H CERTIFICATE]
EXHIBIT A-10 [FORM OF CLASS J CERTIFICATE]
EXHIBIT A-11 [FORM OF CLASS K CERTIFICATE]
EXHIBIT A-12 [FORM OF CLASS L CERTIFICATE]
EXHIBIT A-13 [FORM OF CLASS R-I CERTIFICATE]
EXHIBIT A-14 [FORM OF CLASS R-II CERTIFICATE]
EXHIBIT A-15 [FORM OF CLASS R-III CERTIFICATE]
EXHIBIT A-16 [FORM OF CLASS X-1 CERTIFICATE]
EXHIBIT A-17 [FORM OF CLASS X-2 CERTIFICATE]
EXHIBIT B-1 FORM OF INITIAL CERTIFICATION OF TRUSTEE
EXHIBIT B-2 FORM OF FINAL CERTIFICATION OF TRUSTEE
EXHIBIT C FORM OF REQUEST FOR RELEASE
EXHIBIT D-1 FORM OF TRANSFEROR CERTIFICATE FOR
TRANSFERS OF DEFINITIVE PRIVATELY
OFFERED CERTIFICATES
EXHIBIT D-2A FORM I OF TRANSFEREE CERTIFICATE FOR
TRANSFERS OF DEFINITIVE PRIVATELY
OFFERED CERTIFICATES
EXHIBIT D-2B FORM II OF TRANSFEREE CERTIFICATE FOR
TRANSFERS OF DEFINITIVE PRIVATELY
OFFERED CERTIFICATES
EXHIBIT D-3A FORM I OF TRANSFEREE CERTIFICATE FOR
TRANSFERS OF INTERESTS IN BOOK-ENTRY
PRIVATELY OFFERED CERTIFICATES
EXHIBIT D-3B FORM II OF TRANSFEREE CERTIFICATE FOR
TRANSFERS OF INTERESTS IN BOOK-ENTRY
PRIVATELY OFFERED CERTIFICATES
-i-
<PAGE> 205
EXHIBITS
(Cont'd.)
EXHIBIT E-1A FORM OF TRANSFER AFFIDAVIT AND AGREEMENT
FOR TRANSFERS OF REMIC RESIDUAL
CERTIFICATES
EXHIBIT E-1B FORM OF TRANSFEROR CERTIFICATE FOR
TRANSFERS OF REMIC RESIDUAL
CERTIFICATES
EXHIBIT F FORM OF REGULATION S CERTIFICATE
EXHIBIT G RESERVED
EXHIBIT H FORM OF EXCHANGE CERTIFICATION
EXHIBIT I FORM OF EUROCLEAR OR CEDEL CERTIFICATE
EXHIBIT J FORM OF CERTIFICATE ACCOUNT WIRE
TRANSFER AGREEMENT
EXHIBIT K FORM OF PROOF OF CERTIFICATEHOLDER
STATUS LETTER
EXHIBIT L FORM OF INSPECTION REPORT
EXHIBIT M FORM OF MONTHLY CERTIFICATEHOLDER REPORT
EXHIBIT N FORM OF ANNUAL REPORT
EXHIBIT O FORM OF SPECIALLY SERVICED ASSET REPORT
EXHIBIT P FORM OF SPECIAL SERVICER MONTHLY REPORT
EXHIBIT Q FORM OF MORTGAGE LOAN INFORMATION
EXHIBIT R-1 REPRESENTATIONS AND WARRANTIES OF
WELLS FARGO IN RESPECT OF WELLS FARGO
LOANS
EXHIBIT R-2 REPRESENTATIONS AND WARRANTIES OF MSMC
IN RESPECT OF MSMC LOANS
EXHIBIT R-3 REPRESENTATIONS AND WARRANTIES OF
JHREF IN RESPECT OF JHREF LOANS
EXHIBIT S-1 FORM OF POWER OF ATTORNEY FOR MASTER
SERVICER
EXHIBIT S-2 FORM OF POWER OF ATTORNEY FOR SPECIAL
SERVICER
EXHIBIT T PROCEDURES FOR CALCULATIING DEBT
SERVICE COVERAGE RATIO
-ii-
<PAGE> 206
EXHIBITS
(Cont'd).
SCHEDULE I MSMC LOAN SCHEDULE
SCHEDULE II WELLS FARGO LOAN SCHEDULE
SCHEDULE III JHREF LOAN SCHEDULE
-iii-
<PAGE> 207
EXHIBIT A-1
[FORM OF CLASS A-1 CERTIFICATE]
THIS CLASS A-1 CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST
IN THE DEPOSITOR, THE UNDERWRITERS, 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.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
THE PORTION OF THE CERTIFICATE 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 A-1 CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE
MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY
ASCERTAIN ITS CURRENT CERTIFICATE 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.
<PAGE> 208
MORGAN STANLEY CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH
CERTIFICATES, SERIES 1998-WF1
INITIAL PASS-THROUGH RATE: _____% CERTIFICATE BALANCE OF THIS CLASS
A-1 CERTIFICATE AS OF THE CLOSING
DATE OF POOLING AND SERVICING DATE: $_________________
AGREEMENT: AS OF MARCH 1, 1998
MASTER SERVICER: WELLS FARGO BANK,
CUT-OFF DATE: MARCH 1, 1998 NATIONAL ASSOCIATION
CLOSING DATE: MARCH 5, 1998 SPECIAL SERVICER: CRIIMI MAE
SERVICES LIMITED PARTNERSHIP
FIRST DISTRIBUTION DATE: APRIL 15, 1998
TRUSTEE: LASALLE NATIONAL BANK
AGGREGATE CERTIFICATE BALANCE OF THE
CLASS A-1 CERTIFICATES AS OF THE FISCAL AGENT: ABN AMRO BANK N.V.
CLOSING DATE: $
[CUSIP NO. _________________][CINS
NO. ________________]
NO. _____
CLASS A-1 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 A-1 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 Certificate Account and 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 Balance of this Certificate
specified on the face hereof by the aggregate initial Certificate Balance of the
Class
A-1-2
<PAGE> 209
A-1 Certificates. The Certificates are designated as the Morgan Stanley
Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series 1998-WF1
and are issued in 17 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 that 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 the Pass-Through Rate on
the Certificate 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, Expense 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, Expense 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
A-1-3
<PAGE> 210
the Certificate 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 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
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
Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in Pooling and Servicing Agreement.
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.
A-1-4
<PAGE> 211
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Trustee, the Fiscal Agent, the Master Servicer,
the Special Servicer, the Paying Agent 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 Paying Agent,
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 or (iii) the termination of the Trust pursuant to Section
10.1(c) 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 Residual 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> 212
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:
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS A-1 CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE NATIONAL BANK,
AUTHENTICATING AGENT
By: ______________________________________
AUTHORIZED SIGNATORY
A-1-6
<PAGE> 213
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
(Cust)
TEN ENT - as tenants by the
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-1-7
<PAGE> 214
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-1-8
<PAGE> 215
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been made:
A-1-9
<PAGE> 216
EXHIBIT A-2
[FORM OF CLASS A-2 CERTIFICATE]
THIS CLASS A-2 CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST
IN THE DEPOSITOR, THE UNDERWRITERS, 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.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
THE PORTION OF THE CERTIFICATE 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 A-2 CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE
MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY
ASCERTAIN ITS CURRENT CERTIFICATE 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.
<PAGE> 217
MORGAN STANLEY CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH
CERTIFICATES, SERIES 1998-WF1
INITIAL PASS-THROUGH RATE: ____% CERTIFICATE BALANCE OF THIS CLASS
A-2 CERTIFICATE AS OF THE CLOSING
DATE OF POOLING AND SERVICING DATE: $________________
AGREEMENT: AS OF MARCH 1, 1998
MASTER SERVICER: WELLS FARGO BANK,
CUT-OFF DATE: MARCH 1, 1998 NATIONAL ASSOCIATION
CLOSING DATE: MARCH 5, 1998 SPECIAL SERVICER: CRIIMI MAE
SERVICES LIMITED PARTNERSHIP
FIRST DISTRIBUTION DATE: APRIL 15, 1998
TRUSTEE: LASALLE NATIONAL BANK
AGGREGATE CERTIFICATE BALANCE OF THE
CLASS A-2 CERTIFICATES AS OF THE FISCAL AGENT: ABN AMRO BANK N.V.
CLOSING DATE: $_______________
[CUSIP NO. ][CINS
NO. ]
NO. ___
CLASS A-2 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 A-2 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 Certificate Account and 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 Balance of this Certificate
specified on the face hereof by the aggregate initial Certificate Balance of the
Class
A-2-2
<PAGE> 218
A-2 Certificates. The Certificates are designated as the Morgan Stanley
Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series 1998-WF1
and are issued in 17 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 that 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 the Pass-Through Rate on
the Certificate 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, Expense 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, Expense 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
A-2-3
<PAGE> 219
the Certificate 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 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
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
Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
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.
A-2-4
<PAGE> 220
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Trustee, the Fiscal Agent, the Master Servicer,
the Special Servicer, the Paying Agent 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 Paying Agent,
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 or (iii) the termination of the Trust pursuant to Section
10.1(c) 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 Residual 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-2-5
<PAGE> 221
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:
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS A-2 CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE NATIONAL BANK,
AUTHENTICATING AGENT
By: ______________________________________
AUTHORIZED SIGNATORY
A-2-6
<PAGE> 222
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
(Cust)
TEN ENT - as tenants by the
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-2-7
<PAGE> 223
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-2-8
<PAGE> 224
EXHIBIT A-3
[FORM OF CLASS B CERTIFICATE]
THIS CLASS B CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN
THE DEPOSITOR, THE UNDERWRITERS, 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 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.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
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 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 BALANCE OF THIS CERTIFICATE
MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY
ASCERTAIN ITS CURRENT CERTIFICATE 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.
<PAGE> 225
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-3-2
<PAGE> 226
MORGAN STANLEY CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1998-WF1
INITIAL PASS-THROUGH RATE: ____% CERTIFICATE BALANCE OF THIS CLASS B
CERTIFICATE AS OF THE CLOSING
DATE OF POOLING AND SERVICING DATE: $___________________
AGREEMENT: AS OF MARCH 1, 1998
MASTER SERVICER: WELLS FARGO BANK,
CUT-OFF DATE: MARCH 1, 1998 NATIONAL ASSOCIATION
CLOSING DATE: MARCH 5, 1998 SPECIAL SERVICER: CRIIMI MAE
SERVICES LIMITED PARTNERSHIP
FIRST DISTRIBUTION DATE: APRIL 15, 1998
TRUSTEE: LASALLE NATIONAL BANK
AGGREGATE CERTIFICATE BALANCE OF THE
CLASS B CERTIFICATES AS OF THE CLOSING FISCAL AGENT: ABN AMRO BANK N.V.
DATE: $_______________
[CUSIP NO. __________][CINS NO.
___________]
NO. ___
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 Certificate Account and 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 Balance of this Certificate
specified on the face hereof by the aggregate initial Certificate Balance of the
Class B Certificates. The Certificates are designated as the Morgan Stanley
Capital I Inc., Commercial
A-3-3
<PAGE> 227
Mortgage Pass-Through Certificates, Series 1998-WF1 and are issued in 17 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 that 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 the Pass-Through Rate on
the Certificate 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, Expense 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, Expense 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 Certificate Account
shall be made from time to time for purposes other than distributions to
A-3-4
<PAGE> 228
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 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
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
Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
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.
A-3-5
<PAGE> 229
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Trustee, the Fiscal Agent, the Master Servicer,
the Special Servicer, the Paying Agent 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 Paying Agent,
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 or (iii) the termination of the Trust pursuant to Section
10.1(c) 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 Residual 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-3-6
<PAGE> 230
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:
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS B CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE NATIONAL BANK,
AUTHENTICATING AGENT
By: ______________________________________
AUTHORIZED SIGNATORY
A-3-7
<PAGE> 231
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
(Cust)
TEN ENT - as tenants by the
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> 232
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> 233
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been made:
A-3-10
<PAGE> 234
EXHIBIT A-4
[FORM OF CLASS C CERTIFICATE]
THIS CLASS C CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN
THE DEPOSITOR, THE UNDERWRITERS, 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 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.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
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 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 BALANCE OF THIS CERTIFICATE
MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY
ASCERTAIN ITS CURRENT CERTIFICATE 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.
<PAGE> 235
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-4-2
<PAGE> 236
MORGAN STANLEY CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1998-WF1
INITIAL PASS-THROUGH RATE: % CERTIFICATE BALANCE OF THIS CLASS C
CERTIFICATE AS OF THE CLOSING
DATE OF POOLING AND SERVICING DATE: $_________________
AGREEMENT: AS OF MARCH 1, 1998
MASTER SERVICER: WELLS FARGO BANK,
CUT-OFF DATE: MARCH 1, 1998 NATIONAL ASSOCIATION
CLOSING DATE: MARCH 5, 1998 SPECIAL SERVICER: CRIIMI MAE
SERVICES LIMITED PARTNERSHIP
FIRST DISTRIBUTION DATE: APRIL 15, 1998
TRUSTEE: LASALLE NATIONAL BANK
AGGREGATE CERTIFICATE BALANCE OF THE
CLASS C CERTIFICATES AS OF THE CLOSING FISCAL AGENT: ABN AMRO BANK N.V.
DATE: $
[CUSIP NO._______[CINSNO._________]
NO. ____
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 Certificate Account and 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 Balance of this Certificate
specified on the face hereof by the aggregate initial Certificate Balance of the
Class C Certificates. The Certificates are designated as the Morgan Stanley
Capital I Inc., Commercial
A-4-3
<PAGE> 237
Mortgage Pass-Through Certificates, Series 1998-WF1 and are issued in 17 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 that 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 the Pass-Through Rate on
the Certificate 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, Expense 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, Expense 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 Certificate Account
shall be made from time to time for purposes other than distributions to
A-4-4
<PAGE> 238
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 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
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
Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
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.
A-4-5
<PAGE> 239
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Trustee, the Fiscal Agent, the Master Servicer,
the Special Servicer, the Paying Agent 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 Paying Agent,
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 or (iii) the termination of the Trust pursuant to Section
10.1(c) 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 Residual 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-4-6
<PAGE> 240
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:
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS C CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE NATIONAL BANK,
AUTHENTICATING AGENT
By: ______________________________________
AUTHORIZED SIGNATORY
A-4-7
<PAGE> 241
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
(Cust)
TEN ENT - as tenants by the
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> 242
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> 243
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been made:
A-4-10
<PAGE> 244
EXHIBIT A-5
[FORM OF CLASS D CERTIFICATE]
THIS CLASS D CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN
THE DEPOSITOR, THE PLACEMENT AGENT, 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 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.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
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 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 BALANCE OF THIS CERTIFICATE
MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY
ASCERTAIN ITS CURRENT CERTIFICATE 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.
<PAGE> 245
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-5-2
<PAGE> 246
MORGAN STANLEY CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1998-WF1
INITIAL PASS-THROUGH RATE: % CERTIFICATE BALANCE OF THIS CLASS D
CERTIFICATE AS OF THE CLOSING DATE:
DATE OF POOLING AND SERVICING $_________________
AGREEMENT: AS OF MARCH 1, 1998
MASTER SERVICER: WELLS FARGO BANK,
CUT-OFF DATE: MARCH 1, 1998 NATIONAL ASSOCIATION
CLOSING DATE: MARCH 5, 1998 SPECIAL SERVICER: CRIIMI MAE
SERVICES LIMITED PARTNERSHIP
FIRST DISTRIBUTION DATE: APRIL 15,
1998 TRUSTEE: LASALLE NATIONAL BANK
AGGREGATE CERTIFICATE BALANCE OF THE FISCAL AGENT: ABN AMRO BANK N.V.
CLASS D CERTIFICATES AS OF THE CLOSING
DATE: $ [CUSIP NO. ][CINS NO.]
NO. ___
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 Certificate Account and 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 Balance of this Certificate
specified on the face hereof by the aggregate initial Certificate Balance of the
Class D Certificates. The Certificates are designated as the Morgan Stanley
Capital I Inc., Mortgage
A-5-3
<PAGE> 247
Pass-Through Certificates, Series 1998-WF1 and are issued in 17 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 that 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 the Pass-Through Rate on
the Certificate 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, Expense 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, Expense 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 Certificate Account
shall be made from time to time for purposes other than distributions to
A-5-4
<PAGE> 248
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 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
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
Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
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.
A-5-5
<PAGE> 249
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Trustee, the Fiscal Agent, the Master Servicer,
the Special Servicer, the Paying Agent 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 Paying Agent,
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 or (iii) the termination of the Trust pursuant to Section
10.1(c) 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 Residual 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-5-6
<PAGE> 250
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:
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS D CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE NATIONAL BANK,
AUTHENTICATING AGENT
By: ______________________________________
AUTHORIZED SIGNATORY
A-5-7
<PAGE> 251
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
(Cust)
TEN ENT - as tenants by the
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> 252
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> 253
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been made:
A-5-10
<PAGE> 254
EXHIBIT A-6
[FORM OF CLASS E CERTIFICATE]
THIS CLASS E CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN
THE DEPOSITOR, THE PLACEMENT AGENT, 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 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.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
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 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 BALANCE OF THIS CERTIFICATE
MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY
ASCERTAIN ITS CURRENT CERTIFICATE 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.
<PAGE> 255
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-6-2
<PAGE> 256
MORGAN STANLEY CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1998-WF1
INITIAL PASS-THROUGH RATE: % CERTIFICATE BALANCE OF THIS CLASS E
CERTIFICATE AS OF THE CLOSING DATE:
DATE OF POOLING AND SERVICING $________________
AGREEMENT: AS OF MARCH 1, 1998
MASTER SERVICER: WELLS FARGO BANK,
CUT-OFF DATE: MARCH 1, 1998 NATIONAL ASSOCIATION
CLOSING DATE: MARCH 5, 1998 SPECIAL SERVICER: CRIIMI MAE
SERVICES LIMITED PARTNERSHIP
FIRST DISTRIBUTION DATE: APRIL 15,
1998 TRUSTEE: LASALLE NATIONAL BANK
AGGREGATE CERTIFICATE BALANCE OF THE FISCAL AGENT: ABN AMRO BANK N.V.
CLASS E CERTIFICATES AS OF THE CLOSING
DATE: $ [CUSIP NO. ][CINS
NO. ]
NO. ___
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 Certificate Account and 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 Balance of this Certificate
specified on the face hereof by the aggregate initial Certificate Balance of the
Class E Certificates. The Certificates are designated as the Morgan Stanley
Capital I Inc., Commercial
A-6-3
<PAGE> 257
Mortgage Pass-Through Certificates, Series 1998-WF1 and are issued in 17 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 that 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 the Pass-Through Rate on
the Certificate 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, Expense 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, Expense 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 Certificate Account
shall be made from time to time for purposes other than distributions to
A-6-4
<PAGE> 258
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 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
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
Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
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.
A-6-5
<PAGE> 259
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Trustee, the Fiscal Agent, the Master Servicer,
the Special Servicer, the Paying Agent 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 Paying Agent,
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 or (iii) the termination of the Trust pursuant to Section
10.1(c) 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 Residual 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-6-6
<PAGE> 260
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:
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS E CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE NATIONAL BANK,
AUTHENTICATING AGENT
By: ______________________________________
AUTHORIZED SIGNATORY
A-6-7
<PAGE> 261
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
(Cust)
TEN ENT - as tenants by the
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> 262
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> 263
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been made:
A-6-10
<PAGE> 264
EXHIBIT A-7
[FORM OF CLASS F CERTIFICATE]
THIS CLASS F CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN
THE DEPOSITOR, THE PLACEMENT AGENT, 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 "1933 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 1933 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) IN AN OFFSHORE
TRANSACTION COMPLYING WITH RULE 903 OR RULE 904 OF REGULATION S UNDER THE 1933
ACT, (3) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE 1933 ACT PROVIDED
BY RULE 144 THEREUNDER (IF AVAILABLE), OR (4) 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 1933 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.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
THIS CLASS F CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE
<PAGE> 265
EXTENT DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE PORTION OF THE CERTIFICATE 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 BALANCE OF THIS CERTIFICATE
MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY
ASCERTAIN ITS CURRENT CERTIFICATE 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. THE FOLLOWING
INFORMATION IS PROVIDED SOLELY FOR THE PURPOSES OF APPLYING THE U.S. FEDERAL
INCOME TAX ORIGINAL ISSUE DISCOUNT ("OID") RULES TO THIS CERTIFICATE. THE ISSUE
DATE OF THIS CERTIFICATE IS MARCH __, 1998. ASSUMING THAT THE MORTGAGE LOANS
PREPAY AT AN ASSUMED RATE OF PREPAYMENT USED SOLELY FOR THE PURPOSES OF APPLYING
THE OID RULES TO THE CERTIFICATES EQUAL TO A "CPR" OF 0% (THE "PREPAYMENT
ASSUMPTION"), THIS CERTIFICATE HAS BEEN ISSUED WITH NO MORE THAN $_____ OF OID
PER $1,000 OF INITIAL CERTIFICATE BALANCE, THE YIELD TO MATURITY IS _____% PER
ANNUM AND THE AMOUNT OF OID ATTRIBUTABLE TO THE INITIAL ACCRUAL PERIOD IS NO
MORE THAN $_____ PER $1,000 OF INITIAL CERTIFICATE BALANCE, COMPUTED UNDER THE
EXACT METHOD. NO REPRESENTATION IS MADE THAT THE MORTGAGE LOANS WILL NOT PREPAY
OR THAT, IF THEY DO, THEY WILL PREPAY AT ANY PARTICULAR RATE.
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> 266
MORGAN STANLEY CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1998-WF1
INITIAL PASS-THROUGH RATE: ____% CERTIFICATE BALANCE OF THIS CLASS F
CERTIFICATE AS OF THE CLOSING
DATE OF POOLING AND SERVICING DATE: $________________
AGREEMENT: AS OF MARCH 1, 1997
MASTER SERVICER: WELLS FARGO BANK,
CUT-OFF DATE: MARCH 1, 1998 NATIONAL ASSOCIATION
CLOSING DATE: MARCH 5, 1998 SPECIAL SERVICER: CRIIMI MAE
SERVICES LIMITED PARTNERSHIP
FIRST DISTRIBUTION DATE: APRIL 15, 1998
TRUSTEE: LASALLE NATIONAL BANK
AGGREGATE CERTIFICATE BALANCE OF THE
CLASS F CERTIFICATES AS OF THE CLOSING FISCAL AGENT: ABN AMRO BANK N.V.
DATE: $__________________
[CUSIP NO. _________][CINS NO.
_______]
NO. ___
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 Certificate Account and 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 Balance of this Certificate
specified on the face hereof by the aggregate initial Certificate Balance of the
Class F Certificates. The Certificates are designated as the Morgan Stanley
Capital I Inc., Commercial
A-7-3
<PAGE> 267
Mortgage Pass-Through Certificates, Series 1998-WF1 and are issued in 17 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 that 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 the Pass-Through Rate on
the Certificate 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, Expense 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, Expense 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 Certificate Account
shall be made from time to time for purposes other than distributions to
A-7-4
<PAGE> 268
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 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
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
Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
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.
A-7-5
<PAGE> 269
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Trustee, the Fiscal Agent, the Master Servicer,
the Special Servicer, the Paying Agent 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 Paying Agent,
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 or (iii) the termination of the Trust pursuant to Section
10.1(c) 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 Residual 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-7-6
<PAGE> 270
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:
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS F CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE NATIONAL BANK,
AUTHENTICATING AGENT
By: ______________________________________
AUTHORIZED SIGNATORY
A-7-7
<PAGE> 271
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
(Cust)
TEN ENT - as tenants by the
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-7-8
<PAGE> 272
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-7-9
<PAGE> 273
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been made:
A-7-10
<PAGE> 274
EXHIBIT A-8
[FORM OF CLASS G CERTIFICATE]
THIS CLASS G CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN
THE DEPOSITOR, THE PLACEMENT AGENTS, 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 "1933 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 1933 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) IN AN OFFSHORE
TRANSACTION COMPLYING WITH RULE 903 OR RULE 904 OF REGULATION S UNDER THE 1933
ACT, (3) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE 1933 ACT PROVIDED
BY RULE 144 THEREUNDER (IF AVAILABLE), OR (4) 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 1933 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.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
THIS CLASS G CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE
<PAGE> 275
EXTENT DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE PORTION OF THE CERTIFICATE 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 BALANCE OF THIS CERTIFICATE
MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY
ASCERTAIN ITS CURRENT CERTIFICATE 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. THE FOLLOWING
INFORMATION IS PROVIDED SOLELY FOR THE PURPOSES OF APPLYING THE U.S. FEDERAL
INCOME TAX ORIGINAL ISSUE DISCOUNT ("OID") RULES TO THIS CERTIFICATE. THE ISSUE
DATE OF THIS CERTIFICATE IS MARCH __, 1998. ASSUMING THAT THE MORTGAGE LOANS
PREPAY AT AN ASSUMED RATE OF PREPAYMENT USED SOLELY FOR THE PURPOSES OF APPLYING
THE OID RULES TO THE CERTIFICATES EQUAL TO A "CPR" OF 0% (THE "PREPAYMENT
ASSUMPTION"), THIS CERTIFICATE HAS BEEN ISSUED WITH NO MORE THAN $______ OF OID
PER $1,000 OF INITIAL CERTIFICATE BALANCE, THE YIELD TO MATURITY IS _______% PER
ANNUM AND THE AMOUNT OF OID ATTRIBUTABLE TO THE INITIAL ACCRUAL PERIOD IS NO
MORE THAN $____ PER $1,000 OF INITIAL CERTIFICATE BALANCE, COMPUTED UNDER THE
EXACT METHOD. NO REPRESENTATION IS MADE THAT THE MORTGAGE LOANS WILL NOT PREPAY
OR THAT, IF THEY DO, THEY WILL PREPAY AT ANY PARTICULAR RATE.
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.
[LEGEND FOR REGULATION S TEMPORARY GLOBAL CERTIFICATE - PRIOR TO THE DATE THAT
IS 40 DAYS AFTER THE LATER OF (A) THE COMMENCEMENT OF THE OFFERING OF THE
CERTIFICATES AND (B) MARCH 5, 1998, THIS CERTIFICATE MAY NOT BE OFFERED, SOLD,
PLEDGED OR OTHERWISE TRANSFERRED IN
A-8-2
<PAGE> 276
THE UNITED STATES OR TO A U.S. PERSON EXCEPT PURSUANT TO AN EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE 1933 ACT. NO BENEFICIAL OWNERS OF THIS
CERTIFICATE SHALL BE ENTITLED TO RECEIVE PAYMENT OF PRINCIPAL OR INTEREST HEREON
UNLESS THE REQUIRED CERTIFICATIONS HAVE BEEN DELIVERED PURSUANT TO THE TERMS OF
THE POOLING AND SERVICING AGREEMENT REFERRED TO BELOW.]
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<PAGE> 277
MORGAN STANLEY CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1998-WF1
INITIAL PASS-THROUGH RATE: ____% CERTIFICATE BALANCE OF THIS CLASS G
CERTIFICATE AS OF THE CLOSING
DATE OF POOLING AND SERVICING DATE: $_________________
AGREEMENT: AS OF MARCH 1, 1998
MASTER SERVICER: WELLS FARGO BANK,
CUT-OFF DATE: MARCH 1, 1998 NATIONAL ASSOCIATION
CLOSING DATE: MARCH 5, 1998 SPECIAL SERVICER: CRIIMI MAE
SERVICES LIMITED PARTNERSHIP
FIRST DISTRIBUTION DATE: APRIL 15,
1998 TRUSTEE: LASALLE NATIONAL BANK
AGGREGATE CERTIFICATE BALANCE OF THE FISCAL AGENT: ABN AMRO BANK N.V.
CLASS G CERTIFICATES AS OF THE CLOSING
DATE: $_____________ [CUSIP NO. __________][CINS NO.
________]
NO. ___
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 Certificate Account and 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 Balance of this Certificate
specified on the face hereof by the aggregate initial Certificate Balance of the
Class G Certificates. The Certificates are designated as the Morgan Stanley
Capital I Inc., Commercial
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<PAGE> 278
Mortgage Pass-Through Certificates, Series 1998-WF1 are issued in 17 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 that 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 the Pass-Through Rate on
the Certificate 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, Expense 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, Expense 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 Certificate Account
shall be made from time to time for purposes other than distributions to
A-8-5
<PAGE> 279
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 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
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
Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
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.
A-8-6
<PAGE> 280
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Trustee, the Fiscal Agent, the Master Servicer,
the Special Servicer, the Paying Agent 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 Paying Agent,
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 or (iii) the termination of the Trust pursuant to Section
10.1(c) 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 Residual 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-8-7
<PAGE> 281
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:
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS G CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE NATIONAL BANK,
AUTHENTICATING AGENT
By: ______________________________________
AUTHORIZED SIGNATORY
A-8-8
<PAGE> 282
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
(Cust)
TEN ENT - as tenants by the
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> 283
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> 284
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been made:
A-8-11
<PAGE> 285
EXHIBIT A-9
[FORM OF CLASS H CERTIFICATE]
THIS CLASS H CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN
THE DEPOSITOR, THE PLACEMENT AGENTS, 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 "1933 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 1933 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) IN AN OFFSHORE
TRANSACTION COMPLYING WITH RULE 903 OR RULE 904 OF REGULATION S UNDER THE 1933
ACT, (3) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE 1933 ACT PROVIDED
BY RULE 144 THEREUNDER (IF AVAILABLE), OR (4) 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 1933 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.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
THIS CLASS H CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE
<PAGE> 286
EXTENT DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE PORTION OF THE CERTIFICATE 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 BALANCE OF THIS CERTIFICATE
MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY
ASCERTAIN ITS CURRENT CERTIFICATE 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. THE FOLLOWING
INFORMATION IS PROVIDED SOLELY FOR THE PURPOSES OF APPLYING THE U.S. FEDERAL
INCOME TAX ORIGINAL ISSUE DISCOUNT ("OID") RULES TO THIS CERTIFICATE. THE ISSUE
DATE OF THIS CERTIFICATE IS MARCH __, 1998. ASSUMING THAT THE MORTGAGE LOANS
PREPAY AT AN ASSUMED RATE OF PREPAYMENT USED SOLELY FOR THE PURPOSES OF APPLYING
THE OID RULES TO THE CERTIFICATES EQUAL TO A "CPR" OF 0% (THE "PREPAYMENT
ASSUMPTION"), THIS CERTIFICATE HAS BEEN ISSUED WITH NO MORE THAN $_______ OF OID
PER $1,000 OF INITIAL CERTIFICATE BALANCE, THE YIELD TO MATURITY IS ________%
PER ANNUM AND THE AMOUNT OF OID ATTRIBUTABLE TO THE INITIAL ACCRUAL PERIOD IS NO
MORE THAN $____ PER $1,000 OF INITIAL CERTIFICATE BALANCE, COMPUTED UNDER THE
EXACT METHOD. NO REPRESENTATION IS MADE THAT THE MORTGAGE LOANS WILL NOT PREPAY
OR THAT, IF THEY DO, THEY WILL PREPAY AT ANY PARTICULAR RATE.
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.
[LEGEND FOR REGULATION S TEMPORARY GLOBAL CERTIFICATE - PRIOR TO THE DATE THAT
IS 40 DAYS AFTER THE LATER OF (A) THE COMMENCEMENT OF THE OFFERING OF THE
CERTIFICATES AND (B) MARCH 5, 1998, THIS CERTIFICATE MAY NOT BE OFFERED, SOLD,
PLEDGED OR OTHERWISE TRANSFERRED IN THE
A-9-2
<PAGE> 287
UNITED STATES OR TO A U.S. PERSON EXCEPT PURSUANT TO AN EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE 1933 ACT. NO BENEFICIAL OWNERS OF THIS
CERTIFICATE SHALL BE ENTITLED TO RECEIVE PAYMENT OF PRINCIPAL OR INTEREST HEREON
UNLESS THE REQUIRED CERTIFICATIONS HAVE BEEN DELIVERED PURSUANT TO THE TERMS OF
THE POOLING AND SERVICING AGREEMENT REFERRED TO BELOW.]
A-9-3
<PAGE> 288
MORGAN STANLEY CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1998-WF1
INITIAL PASS-THROUGH RATE: ____% CERTIFICATE BALANCE OF THIS CLASS H
CERTIFICATE AS OF THE CLOSING DATE:
DATE OF POOLING AND SERVICING $__________________
AGREEMENT: AS OF MARCH 1, 1998
MASTER SERVICER: WELLS FARGO BANK,
CUT-OFF DATE: MARCH 1, 1998 NATIONAL ASSOCIATION
CLOSING DATE: MARCH 5, 1998 SPECIAL SERVICER: CRIIMI MAE
SERVICES LIMITED PARTNERSHIP
FIRST DISTRIBUTION DATE: APRIL 15, 1998
TRUSTEE: LASALLE NATIONAL BANK
AGGREGATE CERTIFICATE BALANCE OF THE
CLASS H CERTIFICATES AS OF THE CLOSING FISCAL AGENT: ABN AMRO BANK N.V.
DATE: $__________
[CUSIP NO. __________][CINS NO.
_________]
NO. ___
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 Certificate Account and 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 Balance of this Certificate
specified on the face hereof by the aggregate initial Certificate Balance of the
Class H Certificates. The Certificates are designated as the Morgan Stanley
Capital I Inc., Commercial
A-9-4
<PAGE> 289
Mortgage Pass-Through Certificates, Series 1998-WF1 are issued in 17 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 that 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 the Pass-Through Rate on
the Certificate 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, Expense 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, Expense 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 Certificate Account
shall be made from time to time for purposes other than distributions to
A-9-5
<PAGE> 290
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 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
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
Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
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.
A-9-6
<PAGE> 291
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Trustee, the Fiscal Agent, the Master Servicer,
the Special Servicer, the Paying Agent 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 Paying Agent,
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 or (iii) the termination of the Trust pursuant to Section
10.1(c) 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 Residual 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-9-7
<PAGE> 292
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:
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS H CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE NATIONAL BANK,
AUTHENTICATING AGENT
By: ______________________________________
AUTHORIZED SIGNATORY
A-9-8
<PAGE> 293
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
(Cust)
TEN ENT - as tenants by the
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> 294
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> 295
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been made:
A-9-11
<PAGE> 296
EXHIBIT A-10
[FORM OF CLASS J CERTIFICATE]
THIS CLASS J CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN
THE DEPOSITOR, THE PLACEMENT AGENTS, 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 "1933 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 1933 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) IN AN OFFSHORE
TRANSACTION COMPLYING WITH RULE 903 OR RULE 904 OF REGULATION S UNDER THE 1933
ACT, (3) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE 1933 ACT PROVIDED
BY RULE 144 THEREUNDER (IF AVAILABLE), OR (4) 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 1933 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.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
THIS CLASS J CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE
<PAGE> 297
EXTENT DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE PORTION OF THE CERTIFICATE 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 BALANCE OF THIS CERTIFICATE
MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY
ASCERTAIN ITS CURRENT CERTIFICATE 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. THE FOLLOWING
INFORMATION IS PROVIDED SOLELY FOR THE PURPOSES OF APPLYING THE U.S. FEDERAL
INCOME TAX ORIGINAL ISSUE DISCOUNT ("OID") RULES TO THIS CERTIFICATE. THE ISSUE
DATE OF THIS CERTIFICATE IS MARCH __, 1998. ASSUMING THAT THE MORTGAGE LOANS
PREPAY AT AN ASSUMED RATE OF PREPAYMENT USED SOLELY FOR THE PURPOSES OF APPLYING
THE OID RULES TO THE CERTIFICATES EQUAL TO A "CPR" OF 0% (THE "PREPAYMENT
ASSUMPTION"), THIS CERTIFICATE HAS BEEN ISSUED WITH NO MORE THAN $________ OF
OID PER $1,000 OF INITIAL CERTIFICATE BALANCE, THE YIELD TO MATURITY IS _______%
PER ANNUM AND THE AMOUNT OF OID ATTRIBUTABLE TO THE INITIAL ACCRUAL PERIOD IS NO
MORE THAN $____ PER $1,000 OF INITIAL CERTIFICATE BALANCE, COMPUTED UNDER THE
EXACT METHOD. NO REPRESENTATION IS MADE THAT THE MORTGAGE LOANS WILL NOT PREPAY
OR THAT, IF THEY DO, THEY WILL PREPAY AT ANY PARTICULAR RATE.
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.
[LEGEND FOR REGULATION S TEMPORARY GLOBAL CERTIFICATE - PRIOR TO THE DATE THAT
IS 40 DAYS AFTER THE LATER OF (A) THE COMMENCEMENT OF THE OFFERING OF THE
CERTIFICATES AND (B) MARCH 5, 1998, THIS CERTIFICATE MAY NOT BE OFFERED, SOLD,
PLEDGED OR OTHERWISE TRANSFERRED IN
A-10-2
<PAGE> 298
THE UNITED STATES OR TO A U.S. PERSON EXCEPT PURSUANT TO AN EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE 1933 ACT. NO BENEFICIAL OWNERS OF THIS
CERTIFICATE SHALL BE ENTITLED TO RECEIVE PAYMENT OF PRINCIPAL OR INTEREST HEREON
UNLESS THE REQUIRED CERTIFICATIONS HAVE BEEN DELIVERED PURSUANT TO THE TERMS OF
THE POOLING AND SERVICING AGREEMENT REFERRED TO BELOW.]
A-10-3
<PAGE> 299
MORGAN STANLEY CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH
CERTIFICATES, SERIES 1998-WF1
INITIAL PASS-THROUGH RATE: ____% CERTIFICATE BALANCE OF THIS CLASS J
CERTIFICATE AS OF THE CLOSING DATE:
DATE OF POOLING AND SERVICING $_________________
AGREEMENT: AS OF MARCH 1, 1998
MASTER SERVICER: WELLS FARGO BANK,
CUT-OFF DATE: MARCH 1, 1998 NATIONAL ASSOCIATION
CLOSING DATE: MARCH 5, 1998 SPECIAL SERVICER: CRIIMI MAE SERVICES
LIMITED PARTNERSHIP
FIRST DISTRIBUTION DATE: APRIL 15, 1998
TRUSTEE: LASALLE NATIONAL BANK
AGGREGATE CERTIFICATE BALANCE OF THE
CLASS J CERTIFICATES AS OF THE CLOSING FISCAL AGENT: ABN AMRO BANK N.V.
DATE: $______________
[CUSIP NO. _______][CINS NO. _____]
NO. ___
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 Certificate Account and 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 Balance of this Certificate
specified on the face hereof by the aggregate initial Certificate Balance of the
Class J Certificates. The Certificates are designated as the Morgan Stanley
Capital I Inc., Commercial
A-10-4
<PAGE> 300
Mortgage Pass-Through Certificates, Series 1998-WF1 and are issued in 17 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 that 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 the Pass-Through Rate on
the Certificate 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 Certificate Account
shall be made from time to time for purposes other than distributions to
A-10-5
<PAGE> 301
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 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
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
Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
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.
A-10-6
<PAGE> 302
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Trustee, the Fiscal Agent, the Master Servicer,
the Special Servicer, the Paying Agent 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 Paying Agent,
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 or (iii) the termination of the Trust pursuant to Section
10.1(c) 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 Residual 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-10-7
<PAGE> 303
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:
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS J CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE NATIONAL BANK,
AUTHENTICATING AGENT
By:_______________________________________
AUTHORIZED SIGNATORY
A-10-8
<PAGE> 304
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> 305
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> 306
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been made:
A-10-11
<PAGE> 307
EXHIBIT A-11
[FORM OF CLASS K CERTIFICATE]
THIS CLASS K CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN
THE DEPOSITOR, THE PLACEMENT AGENTS, 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 "1933 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 1933 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) IN AN OFFSHORE
TRANSACTION COMPLYING WITH RULE 903 OR RULE 904 OF REGULATION S UNDER THE 1933
ACT, (3) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE 1933 ACT PROVIDED
BY RULE 144 THEREUNDER (IF AVAILABLE), OR (4) 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 1933 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.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
THIS CLASS K CERTIFICATE IS SUBORDINATED IN RIGHT OR PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE
<PAGE> 308
EXTENT DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE PORTION OF THE CERTIFICATE 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 BALANCE OF THIS CERTIFICATE
MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY
ASCERTAIN ITS CURRENT CERTIFICATE 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. THE FOLLOWING
INFORMATION IS PROVIDED SOLELY FOR THE PURPOSES OF APPLYING THE U.S. FEDERAL
INCOME TAX ORIGINAL ISSUE DISCOUNT ("OID") RULES TO THIS CERTIFICATE. THE ISSUE
DATE OF THIS CERTIFICATE IS MARCH __, 1998. ASSUMING THAT THE MORTGAGE LOANS
PREPAY AT AN ASSUMED RATE OF PREPAYMENT USED SOLELY FOR THE PURPOSES OF APPLYING
THE OID RULES TO THE CERTIFICATES EQUAL TO A "CPR" OF 0% (THE "PREPAYMENT
ASSUMPTION"), THIS CERTIFICATE HAS BEEN ISSUED WITH NO MORE THAN $________ OF
OID PER $1,000 OF INITIAL CERTIFICATE BALANCE, THE YIELD TO MATURITY IS
_________% PER ANNUM AND THE AMOUNT OF OID ATTRIBUTABLE TO THE INITIAL ACCRUAL
PERIOD IS NO MORE THAN $___ PER $1,000 OF INITIAL CERTIFICATE BALANCE, COMPUTED
UNDER THE EXACT METHOD. NO REPRESENTATION IS MADE THAT THE MORTGAGE LOANS WILL
NOT PREPAY OR THAT, IF THEY DO, THEY WILL PREPAY AT ANY PARTICULAR RATE.
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.
[LEGEND FOR REGULATION S TEMPORARY GLOBAL CERTIFICATE - PRIOR TO THE DATE THAT
IS 40 DAYS AFTER THE LATER OF (A) THE COMMENCEMENT OF THE OFFERING OF THE
CERTIFICATES AND (B) MARCH 5, 199, THIS CERTIFICATE MAY NOT BE OFFERED, SOLD,
PLEDGED OR OTHERWISE TRANSFERRED IN
A-11-2
<PAGE> 309
THE UNITED STATES OR TO A U.S. PERSON EXCEPT PURSUANT TO AN EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE 1933 ACT. NO BENEFICIAL OWNERS OF THIS
CERTIFICATE SHALL BE ENTITLED TO RECEIVE PAYMENT OF PRINCIPAL OR INTEREST HEREON
UNLESS THE REQUIRED CERTIFICATIONS HAVE BEEN DELIVERED PURSUANT TO THE TERMS OF
THE POOLING AND SERVICING AGREEMENT REFERRED TO BELOW.]
A-11-3
<PAGE> 310
MORGAN STANLEY CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH
CERTIFICATES, SERIES 1998-WF1
INITIAL PASS-THROUGH RATE: ____% CERTIFICATE BALANCE OF THIS CLASS K
CERTIFICATE AS OF THE CLOSING DATE:
DATE OF POOLING AND SERVICING $___________
AGREEMENT: AS OF MARCH 1, 1998
MASTER SERVICER: WELLS FARGO BANK,
CUT-OFF DATE: MARCH 1, 1998 NATIONAL ASSOCIATION
CLOSING DATE: MARCH 5, 1998 SPECIAL SERVICER: CRIIMI MAE
SERVICES LIMITED PARTNERSHIP
FIRST DISTRIBUTION DATE: APRIL 15, 1998
TRUSTEE: LASALLE NATIONAL BANK
AGGREGATE CERTIFICATE BALANCE OF THE
CLASS K CERTIFICATES AS OF THE CLOSING FISCAL AGENT: ABN AMRO BANK N.V.
DATE: $___________
[CUSIP NO. __________][CINS NO. ____]
NO. ___
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 Certificate Account and 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 Balance of this Certificate
specified on the face hereof by the aggregate initial Certificate Balance of the
Class K Certificates. The Certificates are designated as the Morgan Stanley
Capital I Inc., Commercial
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<PAGE> 311
Mortgage Pass-Through Certificates, Series 1998-WF1 and are issued in 17 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 that 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 the Pass-Through Rate on
the Certificate 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, Expense 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, Expense 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 Certificate Account
shall be made from time to time for purposes other than distributions to
A-11-5
<PAGE> 312
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 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
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
Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
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.
A-11-6
<PAGE> 313
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Trustee, the Fiscal Agent, the Master Servicer,
the Special Servicer, the Paying Agent 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 Paying Agent,
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 or (iii) the termination of the Trust pursuant to Section
10.1(c) 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 Residual 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-11-7
<PAGE> 314
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:
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS K CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE NATIONAL BANK,
AUTHENTICATING AGENT
By: ______________________________________
AUTHORIZED SIGNATORY
A-11-8
<PAGE> 315
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> 316
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> 317
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been made:
A-11-11
<PAGE> 318
EXHIBIT A-12
[FORM OF CLASS L CERTIFICATE]
THIS CLASS L CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN
THE DEPOSITOR, THE PLACEMENT AGENTS, 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 "1933 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 1933 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) IN AN OFFSHORE
TRANSACTION COMPLYING WITH RULE 903 OR RULE 904 OF REGULATION S UNDER THE 1933
ACT, (3) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE 1933 ACT PROVIDED
BY RULE 144 THEREUNDER (IF AVAILABLE), OR (4) 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 1933 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.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
THIS CLASS L CERTIFICATE IS SUBORDINATED IN RIGHT OR PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE
<PAGE> 319
EXTENT DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE PORTION OF THE CERTIFICATE 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 L CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE
MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY
ASCERTAIN ITS CURRENT CERTIFICATE 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. THE FOLLOWING
INFORMATION IS PROVIDED SOLELY FOR THE PURPOSES OF APPLYING THE U.S. FEDERAL
INCOME TAX ORIGINAL ISSUE DISCOUNT ("OID") RULES TO THIS CERTIFICATE. THE ISSUE
DATE OF THIS CERTIFICATE IS MARCH __, 1998. ASSUMING THAT THE MORTGAGE LOANS
PREPAY AT AN ASSUMED RATE OF PREPAYMENT USED SOLELY FOR THE PURPOSES OF APPLYING
THE OID RULES TO THE CERTIFICATES EQUAL TO A "CPR" OF 0% (THE "PREPAYMENT
ASSUMPTION"), THIS CERTIFICATE HAS BEEN ISSUED WITH NO MORE THAN $________ OF
OID PER $1,000 OF INITIAL CERTIFICATE BALANCE, THE YIELD TO MATURITY IS
_________% PER ANNUM AND THE AMOUNT OF OID ATTRIBUTABLE TO THE INITIAL ACCRUAL
PERIOD IS NO MORE THAN $___ PER $1,000 OF INITIAL CERTIFICATE BALANCE, COMPUTED
UNDER THE EXACT METHOD. NO REPRESENTATION IS MADE THAT THE MORTGAGE LOANS WILL
NOT PREPAY OR THAT, IF THEY DO, THEY WILL PREPAY AT ANY PARTICULAR RATE.
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.
[LEGEND FOR REGULATION S TEMPORARY GLOBAL CERTIFICATE - PRIOR TO THE DATE THAT
IS 40 DAYS AFTER THE LATER OF (A) THE COMMENCEMENT OF THE OFFERING OF THE
CERTIFICATES AND (B) MARCH 5, 1998, THIS CERTIFICATE MAY NOT BE OFFERED, SOLD,
PLEDGED OR OTHERWISE TRANSFERRED IN
A-12-2
<PAGE> 320
THE UNITED STATES OR TO A U.S. PERSON EXCEPT PURSUANT TO AN EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE 1933 ACT. NO BENEFICIAL OWNERS OF THIS
CERTIFICATE SHALL BE ENTITLED TO RECEIVE PAYMENT OF PRINCIPAL OR INTEREST HEREON
UNLESS THE REQUIRED CERTIFICATIONS HAVE BEEN DELIVERED PURSUANT TO THE TERMS OF
THE POOLING AND SERVICING AGREEMENT REFERRED TO BELOW.]
A-12-3
<PAGE> 321
MORGAN STANLEY CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH
CERTIFICATES, SERIES 1998-WF1
INITIAL PASS-THROUGH RATE: ____% CERTIFICATE BALANCE OF THIS CLASS L
CERTIFICATE AS OF THE CLOSING DATE:
DATE OF POOLING AND SERVICING $___________
AGREEMENT: AS OF MARCH 1, 1998
MASTER SERVICER: WELLS FARGO BANK,
CUT-OFF DATE: MARCH 1, 1998 NATIONAL ASSOCIATION
CLOSING DATE: MARCH 5, 1998 SPECIAL SERVICER: CRIIMI MAE
SERVICES LIMITED PARTNERSHIP
FIRST DISTRIBUTION DATE: APRIL 15, 1998
TRUSTEE: LASALLE NATIONAL BANK
AGGREGATE CERTIFICATE BALANCE OF THE
CLASS L CERTIFICATES AS OF THE CLOSING FISCAL AGENT: ABN AMRO BANK N.V.
DATE: $___________
[CUSIP NO. __________][CINS NO._____]
NO. ___
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 Certificate Account and 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 Balance of this Certificate
specified on the face hereof by the aggregate initial Certificate Balance of the
Class L Certificates. The Certificates are designated as the Morgan Stanley
Capital I Inc., Commercial
A-12-4
<PAGE> 322
Mortgage Pass-Through Certificates, Series 1998-WF1 and are issued in 17 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 that 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 the Pass-Through Rate on
the Certificate 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, Expense 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, Expense 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 Certificate Account
shall be made from time to time for purposes other than distributions to
A-12-5
<PAGE> 323
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 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
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
Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
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.
A-12-6
<PAGE> 324
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Trustee, the Fiscal Agent, the Master Servicer,
the Special Servicer, the Paying Agent 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 Paying Agent,
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 or (iii) the termination of the Trust pursuant to Section
10.1(c) 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 Residual 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-12-7
<PAGE> 325
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:
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS L CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE NATIONAL BANK,
AUTHENTICATING AGENT
By: ______________________________________
AUTHORIZED SIGNATORY
A-12-8
<PAGE> 326
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> 327
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> 328
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been made:
A-12-11
<PAGE> 329
EXHIBIT A-13
[FORM OF CLASS R-I CERTIFICATE]
THIS CLASS R-I CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST
IN THE DEPOSITOR, THE PLACEMENT AGENT, 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 "1933 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 1933 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) IN AN OFFSHORE
TRANSACTION COMPLYING WITH RULE 903 OR RULE 904 OF REGULATION S UNDER THE 1933
ACT, (3) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE 1933 ACT PROVIDED
BY RULE 144 THEREUNDER (IF AVAILABLE), OR (4) 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 1933 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
<PAGE> 330
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, 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
TRADE OR BUSINESS IN THE UNITED STATES (ANY SUCH PERSON BEING HEREINAFTER
REFERRED TO AS A "UNITED STATES PERSON") OR (E) AN AGENT OF A DISQUALIFIED
ORGANIZATION OR A NON-UNITED 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 NON-UNITED 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> 331
MORGAN STANLEY CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1998-WF1
PERCENTAGE INTEREST OF THIS CLASS R-I MASTER SERVICER: WELLS FARGO BANK,
CERTIFICATE: ___% NATIONAL ASSOCIATION
DATE OF POOLING AND SERVICING SPECIAL SERVICER: CRIIMI MAE
AGREEMENT: AS OF MARCH 1, 1998 SERVICES LIMITED PARTNERSHIP
CUT-OFF DATE: MARCH 1, 1998 TRUSTEE: LASALLE NATIONAL BANK
CLOSING DATE: MARCH 5, 1998 FISCAL AGENT: ABN AMRO BANK N.V.
FIRST DISTRIBUTION DATE: APRIL 15, CUSIP NO. __________
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 Certificate Account and 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-WF1 and are issued in 17 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-13-3
<PAGE> 332
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that 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.
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, Expense 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, Expense 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 Certificate 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
A-13-4
<PAGE> 333
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 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.
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, the Paying Agent 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 Paying Agent,
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
A-13-5
<PAGE> 334
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 or (iii) the termination of the Trust pursuant to Section
10.1(c) 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 Residual 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-13-6
<PAGE> 335
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:
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,
AUTHENTICATING AGENT
By: ______________________________________
AUTHORIZED SIGNATORY
A-13-7
<PAGE> 336
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> 337
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> 338
EXHIBIT A-14
[FORM OF CLASS R-II CERTIFICATE]
THIS CLASS R-II CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST
IN THE DEPOSITOR, THE PLACEMENT AGENT, 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 "1933 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 1933 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) IN AN OFFSHORE
TRANSACTION COMPLYING WITH RULE 903 OR RULE 904 OF REGULATION S UNDER THE 1933
ACT, (3) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE 1933 ACT PROVIDED
BY RULE 144 THEREUNDER (IF AVAILABLE), OR (4) 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 1933 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
<PAGE> 339
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, 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 TRADE OR BUSINESS IN
THE UNITED STATES (ANY SUCH PERSON BEING HEREINAFTER REFERRED TO AS A "UNITED
STATES PERSON") OR (E) AN AGENT OF A DISQUALIFIED ORGANIZATION OR A NON-UNITED
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 NON-UNITED 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> 340
MORGAN STANLEY CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1998-WF1
PERCENTAGE INTEREST OF THIS CLASS R-II MASTER SERVICER: WELLS FARGO BANK,
CERTIFICATE: ___% NATIONAL ASSOCIATION
DATE OF POOLING AND SERVICING SPECIAL SERVICER: CRIIMI MAE
AGREEMENT: AS OF MARCH 1, 1998 SERVICES LIMITED PARTNERSHIP
CUT-OFF DATE: MARCH 1, 1998 TRUSTEE: LASALLE NATIONAL BANK
CLOSING DATE: MARCH 5, 1998 FISCAL AGENT: ABN AMRO BANK N.V.
FIRST DISTRIBUTION DATE: APRIL 15, CUSIP NO. __________
1998
NO. 1
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 Certificate Account and 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-WF1 and are issued in 17 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.
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<PAGE> 341
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that 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.
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 after payment to the holders of all classes of
REMIC II Regular Interests 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, Expense 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, Expense 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 Certificate 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
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<PAGE> 342
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 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
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.
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, the Paying Agent 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 Paying Agent,
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
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<PAGE> 343
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 or (iii) the termination of the Trust pursuant to Section
10.1(c) 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 Residual 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.
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<PAGE> 344
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:
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,
AUTHENTICATING AGENT
By: ______________________________________
AUTHORIZED SIGNATORY
A-14-7
<PAGE> 345
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> 346
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> 347
EXHIBIT A-15
[FORM OF CLASS R-III CERTIFICATE]
THIS CLASS R-III CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST
IN THE DEPOSITOR, THE PLACEMENT AGENT, 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 "1933 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 1933 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) IN AN OFFSHORE
TRANSACTION COMPLYING WITH RULE 903 OR RULE 904 OF REGULATION S UNDER THE 1933
ACT, (3) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE 1933 ACT PROVIDED
BY RULE 144 THEREUNDER (IF AVAILABLE), OR (4) 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 1933 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
<PAGE> 348
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, 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 TRADE OR BUSINESS IN THE UNITED STATES (ANY SUCH PERSON BEING HEREINAFTER
REFERRED TO AS A "UNITED STATES PERSON") OR (E) AN AGENT OF A DISQUALIFIED
ORGANIZATION OR A NON-UNITED 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 NON-UNITED 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> 349
MORGAN STANLEY CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1998-WF1
PERCENTAGE INTEREST OF THIS CLASS MASTER SERVICER: WELLS FARGO BANK,
R-III CERTIFICATE: ___% NATIONAL ASSOCIATION
DATE OF POOLING AND SERVICING SPECIAL SERVICER: CRIIMI MAE
AGREEMENT: AS OF MARCH 1, 1998 SERVICES LIMITED PARTNERSHIP
CUT-OFF DATE: MARCH 1, 1998 TRUSTEE: LASALLE NATIONAL BANK
CLOSING DATE: MARCH 5, 1998 FISCAL AGENT: ABN AMRO BANK N.V.
FIRST DISTRIBUTION DATE: APRIL 15, CUSIP NO. __________
1998
NO. 1
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 Certificate Account and 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-WF1 and are issued in 17 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-15-3
<PAGE> 350
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that 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.
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 after payment to the holders of all classes of
REMIC II Regular Interests 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, Expense 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, Expense 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 Certificate 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
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<PAGE> 351
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 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
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.
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, the Paying Agent 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 Paying Agent,
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
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<PAGE> 352
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 or (iii) the termination of the Trust pursuant to Section
10.1(c) 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 Residual 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-15-6
<PAGE> 353
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:
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,
AUTHENTICATING AGENT
By: ______________________________________
AUTHORIZED SIGNATORY
A-15-7
<PAGE> 354
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> 355
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> 356
EXHIBIT A-16
[FORM OF CLASS X-1 CERTIFICATE]
THIS CLASS X-1 CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST
IN THE DEPOSITOR, THE PLACEMENT AGENT, 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 "1933 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 1933 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) IN AN OFFSHORE
TRANSACTION COMPLYING WITH RULE 903 OR RULE 904 OF REGULATION S UNDER THE 1933
ACT, (3) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE 1933 ACT PROVIDED
BY RULE 144 THEREUNDER (IF AVAILABLE), OR (4) 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 1933 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, 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.
THE INITIAL NOTIONAL AMOUNT HEREOF IS AS SET FORTH HEREIN, REDUCED OR INCREASED
AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
THE PORTION OF THE 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
NOTIONAL AMOUNT OF THIS CLASS X-1 CERTIFICATE. ACCORDINGLY, THE NOTIONAL AMOUNT
OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
<PAGE> 357
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT NOTIONAL AMOUNT 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. THE FOLLOWING
INFORMATION IS PROVIDED SOLELY FOR THE PURPOSES OF APPLYING THE U.S. FEDERAL
INCOME TAX ORIGINAL ISSUE DISCOUNT ("OID") RULES TO THIS CERTIFICATE. THE ISSUE
DATE OF THIS CERTIFICATE IS MARCH __, 1998. ASSUMING THAT THE MORTGAGE LOANS
PREPAY AT AN ASSUMED RATE OF PREPAYMENT USED SOLELY FOR THE PURPOSES OF APPLYING
THE OID RULES TO THE CERTIFICATES EQUAL TO A "CPR" OF 0% (THE "PREPAYMENT
ASSUMPTION"), THIS CERTIFICATE HAS BEEN ISSUED WITH NO MORE THAN $_____ OF OID
PER $100,000 OF INITIAL NOTIONAL AMOUNT, THE YIELD TO MATURITY IS _____% PER
ANNUM AND THE AMOUNT OF OID ATTRIBUTABLE TO THE INITIAL ACCRUAL PERIOD IS NO
MORE THAN $_____ PER $100,000 OF INITIAL NOTIONAL AMOUNT, COMPUTED UNDER THE
EXACT METHOD. NO REPRESENTATION IS MADE THAT THE MORTGAGE LOANS WILL NO PREPAY
OR THAT, IF THEY DO, THEY WILL PREPAY AT ANY PARTICULAR RATE.
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.
[LEGEND FOR REGULATION S TEMPORARY GLOBAL CERTIFICATE - PRIOR TO THE DATE THAT
IS 40 DAYS AFTER THE LATER OF (A) THE COMMENCEMENT OF THE OFFERING OF THE
CERTIFICATES AND (B) MARCH 5, 1998, THIS CERTIFICATE MAY NOT BE OFFERED, SOLD,
PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A U.S. PERSON EXCEPT
PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE 1933 ACT. NO
BENEFICIAL OWNERS OF THIS CERTIFICATE SHALL BE ENTITLED TO RECEIVE PAYMENT OF
PRINCIPAL OR INTEREST HEREON UNLESS THE REQUIRED CERTIFICATIONS HAVE BEEN
DELIVERED PURSUANT TO THE TERMS OF THE POOLING AND SERVICING AGREEMENT REFERRED
TO BELOW.]
A-16-2
<PAGE> 358
MORGAN STANLEY CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1998-WF1
INITIAL PASS-THROUGH RATE: ____% AGGREGATE NOTIONAL AMOUNT OF THE
CLASS X-1 CERTIFICATES AS OF THE
INITIAL NOTIONAL AMOUNT OF THIS CLASS CLOSING DATE: $____________
X-1 CERTIFICATE: $__________________
MASTER SERVICER: WELLS FARGO BANK,
DATE OF POOLING AND SERVICING NATIONAL ASSOCIATION
AGREEMENT: AS OF MARCH 1, 1998
SPECIAL SERVICER: CRIIMI MAE
CUT-OFF DATE: MARCH 1, 1998 SERVICES LIMITED PARTNERSHIP
CLOSING DATE: MARCH 5, 1998 TRUSTEE: LASALLE NATIONAL BANK
FIRST DISTRIBUTION DATE: APRIL 15, FISCAL AGENT: ABN AMRO BANK N.V.
1998
[CUSIP NO.__________][CINS NO._______]
NO. ___
CLASS X-1 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-1 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 Certificate Account and 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 Notional Amount of this Certificate
specified on the face hereof by the initial aggregate Notional Amount of the
Class X-1
A-16-3
<PAGE> 359
Certificates. The Certificates are designated as the Morgan Stanley
Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series 1998-WF1
and are issued in 17 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 that 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 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 the Pass-Through Rate
specified above on the 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
A-16-4
<PAGE> 360
the Certificate 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 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
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 X-1 Certificates will be issued in denominations of $50,000 initial
Notional Amount and in any whole dollar denomination 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.
A-16-5
<PAGE> 361
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Trustee, the Fiscal Agent, the Master Servicer,
the Special Servicer, the Paying Agent 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 Paying Agent,
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 or (iii) the termination of the Trust pursuant to Section
10.1(c) 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 Residual 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-16-6
<PAGE> 362
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:
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS X-1 CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE NATIONAL BANK,
AUTHENTICATING AGENT
By: ______________________________________
AUTHORIZED SIGNATORY
A-16-7
<PAGE> 363
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-16-8
<PAGE> 364
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> 365
EXHIBIT A-17
[FORM OF CLASS X-2 CERTIFICATE]
THIS CLASS X-2 CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST
IN THE DEPOSITOR, THE PLACEMENT AGENT, 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.
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.
THE INITIAL NOTIONAL AMOUNT HEREOF IS AS SET FORTH HEREIN, REDUCED OR INCREASED
AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
THE PORTION OF THE 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
NOTIONAL AMOUNT OF THIS CLASS X-2 CERTIFICATE. ACCORDINGLY, THE NOTIONAL AMOUNT
OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS
CERTIFICATE MAY ASCERTAIN ITS CURRENT NOTIONAL AMOUNT 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. THE FOLLOWING
INFORMATION IS PROVIDED SOLELY FOR THE PURPOSES OF APPLYING THE U.S. FEDERAL
INCOME TAX ORIGINAL ISSUE DISCOUNT ("OID") RULES TO THIS CERTIFICATE. THE ISSUE
DATE OF THIS CERTIFICATE IS MARCH __, 1998. ASSUMING THAT THE MORTGAGE LOANS
PREPAY AT AN ASSUMED RATE OF PREPAYMENT USED SOLELY FOR THE PURPOSES OF APPLYING
THE OID RULES TO THE CERTIFICATES EQUAL TO A "CPR" OF 0% (THE "PREPAYMENT
ASSUMPTION"), THIS CERTIFICATE HAS BEEN ISSUED WITH NO MORE THAN $______ OF OID
PER $100,000 OF INITIAL NOTIONAL AMOUNT, THE YIELD TO MATURITY IS ______% PER
ANNUM AND THE AMOUNT OF OID ATTRIBUTABLE TO THE INITIAL ACCRUAL PERIOD IS NO
MORE THAN $_____ PER $100,000 OF INITIAL NOTIONAL AMOUNT, COMPUTED UNDER THE
EXACT METHOD. NO
<PAGE> 366
REPRESENTATION IS MADE THAT THE MORTGAGE LOANS WILL NO PREPAY OR THAT, IF THEY
DO, THEY WILL PREPAY AT ANY PARTICULAR RATE.
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.
[LEGEND FOR REGULATION S TEMPORARY GLOBAL CERTIFICATE - PRIOR TO THE DATE THAT
IS 40 DAYS AFTER THE LATER OF (A) THE COMMENCEMENT OF THE OFFERING OF THE
CERTIFICATES AND (B) MARCH 5, 1998, THIS CERTIFICATE MAY NOT BE OFFERED, SOLD,
PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A U.S. PERSON EXCEPT
PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE 1933 ACT. NO
BENEFICIAL OWNERS OF THIS CERTIFICATE SHALL BE ENTITLED TO RECEIVE PAYMENT OF
PRINCIPAL OR INTEREST HEREON UNLESS THE REQUIRED CERTIFICATIONS HAVE BEEN
DELIVERED PURSUANT TO THE TERMS OF THE POOLING AND SERVICING AGREEMENT REFERRED
TO BELOW.]
A-17-2
<PAGE> 367
MORGAN STANLEY CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1998-WF1
INITIAL PASS-THROUGH RATE: ____% AGGREGATE NOTIONAL AMOUNT OF THE
CLASS X-2 CERTIFICATES AS OF THE
INITIAL NOTIONAL AMOUNT OF THIS CLASS CLOSING DATE: $______________
X-2 CERTIFICATE: $_______________
MASTER SERVICER: WELLS FARGO BANK,
DATE OF POOLING AND SERVICING NATIONAL ASSOCIATION
AGREEMENT: AS OF MARCH 1, 1998
SPECIAL SERVICER: CRIIMI MAE
CUT-OFF DATE: MARCH 1, 1998 SERVICES LIMITED PARTNERSHIP
CLOSING DATE: MARCH 5, 1998 TRUSTEE: LASALLE NATIONAL BANK
FIRST DISTRIBUTION DATE: APRIL 15, FISCAL AGENT: ABN AMRO BANK N.V.
1998
[CUSIP NO.__________][CINS NO._______]
NO. ___
CLASS X-2 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-2 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 Certificate Account and 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 Notional Amount of this Certificate
specified on the face hereof by the initial aggregate Notional Amount of the
Class X-2
A-17-3
<PAGE> 368
Certificates. The Certificates are designated as the Morgan Stanley Capital I
Inc., Commercial Mortgage Pass-Through Certificates, Series 1998-WF1 and are
issued in 17 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 that 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 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 the Pass-Through Rate
specified above on the 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, Expense 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, Expense 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
A-17-4
<PAGE> 369
the Certificate 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 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
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 X-2 Certificates will be issued in denomination of $50,000 initial
Notional Amount and in any whole dollar denomination 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.
A-17-5
<PAGE> 370
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Trustee, the Fiscal Agent, the Master Servicer,
the Special Servicer, the Paying Agent 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 Paying Agent,
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 or (iii) the termination of the Trust pursuant to Section
10.1(c) 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 Residual 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-17-6
<PAGE> 371
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:
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS X-2 CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE NATIONAL BANK,
AUTHENTICATING AGENT
By: ______________________________________
AUTHORIZED SIGNATORY
A-17-7
<PAGE> 372
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 entireties (Cust)
JT TEN - as joint tenants with rights of Under Uniform Gifts to Minors
survivorship and not as tenants in
common
Act.......................
(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-17-8
<PAGE> 373
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-17-9
<PAGE> 374
EXHIBIT B-1
FORM OF INITIAL CERTIFICATION OF TRUSTEE
March __, 1998
Morgan Stanley Capital I Inc.
1585 Broadway
New York, New York 10036
Wells Fargo Bank, National Association
555 Montgomery Street, 17th Floor
San Francisco, California 94111
Re: Pooling and Servicing Agreement ("Pooling and Servicing
Agreement") relating to Morgan Stanley Capital I Inc.,
Commercial Mortgage Pass-Through Certificates, Series 1998-WF1
Ladies and Gentlemen:
In accordance with the provisions of Section 2.2 of the
Pooling and Servicing Agreement, the undersigned hereby certifies that, with
respect to each Mortgage Loan listed in the Mortgage Loan Schedule and subject
to the exceptions noted in the schedule of exceptions attached hereto, that: (a)
all documents specified in clause (i) of the definition of "Mortgage File" are
in its possession, (b) such documents have been reviewed by it and have not been
materially mutilated, damaged, defaced, torn or otherwise physically altered,
and such documents relate to such Mortgage Loan, (c) based on its examination
and only as to the foregoing documents, the loan number and the name of the
borrower set forth in the Mortgage Loan Schedule respecting such Mortgage Loan
accurately reflects the information contained in such documents, and (d) each
Mortgage Note has been endorsed as provided in clause (i) of the definition of
"Mortgage File" of the Pooling and Servicing Agreement. 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, the REMIC I Regular Interests, and the REMIC II Regular
Interests.
B-1-1
<PAGE> 375
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-1-2
<PAGE> 376
SCHEDULE OF EXCEPTIONS
B-1-3
<PAGE> 377
EXHIBIT B-2
FORM OF FINAL CERTIFICATION OF TRUSTEE
__________, 1998
Morgan Stanley Capital I Inc.
1585 Broadway
New York, New York 10036
Wells Fargo Bank, National Association
555 Montgomery Street, 17th Floor
San Francisco, California 94111
Re: Pooling and Servicing Agreement ("Pooling and Servicing
Agreement") relating to Morgan Stanley Capital I Inc.,
Commercial Mortgage Pass-Through Certificates, Series 1998-WF1
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), (iv), (v), (viii) and (ix) of the definition of "Mortgage File," and
any documents required to be included in the Mortgage File pursuant to clauses
(iii), (vii), and (x) of the definition of "Mortgage File," to the extent the
Trustee has received written notification by the Depositor or the Master
Servicer that such documents are required by the related Mortgage Loan, are in
its possession, (b) such documents have been reviewed by it and have not been
materially mutilated, damaged, defaced, torn or otherwise physically altered,
and such documents relate to such Mortgage Loan, (c) based on its examination
and only as to the foregoing documents, the loan number, the street address of
the Mortgaged Property and the name of the borrower set forth in the Mortgage
Loan Schedule accurately reflects the information contained in the documents in
the Mortgage File, and (d) each Mortgage Note has been endorsed and each
Assignment of Mortgage has been delivered as provided in the definition of
"Mortgage File" contained in the Pooling and Servicing Agreement. 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, the REMIC I Regular Interests, and the REMIC II Regular
Interests.
B-2-1
<PAGE> 378
Capitalized words and phrases used herein shall have the
respective meanings assigned to them in the Pooling and Servicing Agreement.
This Certificate is qualified in all respects by the terms of said Pooling and
Servicing Agreement including but not limited to Section 2.2.
LASALLE NATIONAL BANK, as Trustee
By: _____________________________
Name:
Title:
B-2-2
<PAGE> 379
SCHEDULE OF EXCEPTIONS
B-2-3
<PAGE> 380
EXHIBIT C
FORM OF REQUEST FOR RELEASE
To: LaSalle National Bank, Trustee
135 South LaSalle Street
Chicago, Illinois 60674
Attn: Asset-Backed Securities Trust Services Group
Re: Morgan Stanley Capital I Inc., Commercial
Mortgage Pass-Through Certificates, Series 1998-WF1
Date:__________
In connection with the administration of the Mortgage Loans
held by you as Trustee under the Pooling and Servicing Agreement dated as of
March 1, 1998 by and among Morgan Stanley Capital I Inc., as Depositor, Wells
Fargo Bank, National Association, as Master Servicer, CRIIMI Mae Services
Limited Partnership, 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 Trustee Mortgage File held by you
as Trustee with respect to the following described Mortgage Loan for the reason
indicated below.
Mortgagor's Name:
Address:
Loan No.:
Reason for requesting file:
_____ 1. Mortgage Loan paid in full.
(The [Master] [Special] Servicer hereby certifies
that all amounts received in connection with the
Mortgage Loan have been or will be, following the
[Master] [Special] Servicer's release of the Trustee
Mortgage File, credited to the Certificate Account or
the Distribution Account pursuant to the Pooling and
Servicing Agreement.)
_____ 2. Mortgage Loan repurchased.
(The [Master] [Special] Servicer hereby certifies
that the Purchase Price has been credited to the
Distribution Account pursuant to the Pooling and
Servicing Agreement.)
C-1
<PAGE> 381
_____ 3. Mortgage Loan substituted.
(The [Master] [Special] Servicer hereby certifies
that a Qualifying Substitute Mortgage Loan has been
assigned and delivered to you along with the related
Trustee Mortgage File pursuant to the Pooling and
Servicing Agreement.)
_____ 4. The Mortgage Loan is being foreclosed.
_____ 5. Other. (Describe)
The undersigned acknowledges that the above Trustee Mortgage
File will be held by the undersigned in accordance with the provisions of the
Pooling and Servicing Agreement and will be returned to you, except if the
Mortgage Loan has been paid in full, repurchased or substituted for by a
Qualifying Substitute Mortgage Loan (in which case the Trustee Mortgage File
will be retained by us permanently), when no longer required by us for such
purpose).
Capitalized terms used herein shall have the meanings ascribed
to them in the Pooling and Servicing Agreement.
[Name of [Master] [Special] Servicer]
By: ______________________________________________
Name:
Title:
C-2
<PAGE> 382
EXHIBIT D-1
FORM OF TRANSFEROR CERTIFICATE FOR
TRANSFERS OF DEFINITIVE PRIVATELY OFFERED CERTIFICATES
[Date]
[CERTIFICATE REGISTRAR]
Re: Morgan Stanley Capital I Inc., Commercial Mortgage
Pass-Through Certificates, Series 1998-WF1, Class __ (the
"Certificates")
Dear Sirs:
This letter is delivered to you in connection with the
transfer by _________________ (the "Transferor") to _________________ (the
"Transferee") of [Class ___ Certificates having an initial principal balance as
of March ___, 1998 (the "Closing Date") of $__________][evidencing a ____%
Percentage Interest in the related Class] (the "Transferred Certificates"). The
Transferred Certificates were issued pursuant to the Pooling and Servicing
Agreement (the "Pooling and Servicing Agreement"), dated as of March 1, 1998,
among Morgan Stanley Capital I Inc., as depositor (the "Depositor"), Wells Fargo
Bank, National Association, as master servicer, CRIIMI MAE Services Limited
Partnership, as special servicer, LaSalle National Bank, as trustee, and ABN
AMRO Bank N.V., as fiscal agent. All terms used herein and not otherwise defined
shall have the meanings set forth in the Pooling and Servicing Agreement. The
Transferor hereby certifies, represents and warrants to you, as Certificate
Registrar, that:
1. The Transferor is the lawful owner of the Transferred
Certificates with the full right to transfer such Certificates free
from any and all claims and encumbrances whatsoever.
2. Neither the Transferor nor anyone acting on its behalf has
(a) offered, transferred, pledged, sold or otherwise disposed of any
Transferred Certificate, any interest in any Certificate or any other
similar security to any person in any manner, (b) solicited any offer
to buy or accept a transfer, pledge or other disposition of any
Transferred Certificate, any interest in any Transferred Certificate or
any other similar security from any person in any manner, (c) otherwise
approached or negotiated with respect to any Transferred Certificate,
any interest in any Transferred Certificate or any other similar
security with any person in any manner, (d) made any general
solicitation by means of general advertising or in any other manner, or
(e) taken any other action, which (in the case of any of the acts
described in clauses (a) through (e) hereof) would constitute a
distribution of any Transferred Certificate under the Securities Act of
1933, as amended (the "Securities Act"), or would render the
disposition of any Transferred
D-1-1
<PAGE> 383
Certificate a violation of Section 5 of the Securities Act or any state
securities laws, or would require registration or qualification of any
Transferred Certificate pursuant to the Securities Act or any state securities
laws.
Very truly yours,
---------------------------
(Transferor)
By:
------------------------
Name:
----------------------
Title:
---------------------
2
<PAGE> 384
EXHIBIT D-2A
FORM I OF TRANSFEREE CERTIFICATE
FOR TRANSFERS OF DEFINITIVE
PRIVATELY OFFERED CERTIFICATES
[Date]
[CERTIFICATE REGISTRAR]
Re: Morgan Stanley Capital I Inc., Commercial Mortgage
Pass-Through Certificates, Series 1998-WF1 (the
"Certificates")
Ladies and Gentlemen:
This letter is delivered to you in connection with the
transfer by _________________ (the "Transferor") to _________________ (the
"Transferee") of Class ______ Certificates [having an initial Certificate
Principal Balance as of March __, 1998 (the "Closing Date") of [$__________]
[evidencing a ____% Percentage Interest in the related Class] (the "Transferred
Certificates"). The Certificates, including the Transferred Certificates, were
issued pursuant to the Pooling and Servicing Agreement, dated as of March 1,
1998 (the "Pooling and Servicing Agreement"), among Morgan Stanley Capital I
Inc., as depositor (the "Depositor"), Wells Fargo Bank, National Association, as
master servicer, CRIIMI MAE Services Limited Partnership, 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
Transferee hereby certifies, represents and warrants to you, as Certificate
Registrar, that:
1. The Transferee is a "qualified institutional buyer" (a
"Qualified Institutional Buyer") as that term is defined in Rule 144A
("Rule 144A") under the Securities Act of 1933, as amended (the
"Securities Act") and has completed one of the forms of certification
to that effect attached hereto as Annex 1 and Annex 2. The Transferee
is aware that the sale to it of the Transferred Certificates is being
made in reliance on Rule 144A. The Transferee is acquiring the
Transferred Certificates for its own account or for the account of a
Qualified Institutional Buyer, and understands that such Transferred
Certificates may be resold, pledged or transferred only (i) to a person
reasonably believed to be a Qualified Institutional Buyer that
purchases for its own account or for the account of a Qualified
Institutional Buyer to whom notice is given that the resale, pledge or
transfer is being made in reliance on Rule 144A, or (ii) pursuant to
another exemption from registration under the Securities Act.
2. The Transferee has been furnished with all information
regarding (a) the Transferred Certificates and distributions thereon,
(b) the nature, performance and servicing of the Mortgage Loans, (c)
the Pooling and Servicing Agreement, and (d) any credit enhancement
mechanism associated with the Transferred Certificates, that it has
requested.
1
<PAGE> 385
Very truly yours,
---------------------------
(Transferor)
By:
------------------------
Name:
----------------------
Title:
---------------------
2
<PAGE> 386
ANNEX 2 TO EXHIBIT D-2A
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[for Transferees that are Registered Investment Companies]
The undersigned hereby certifies as follows to [name of
Transferor] (the "Transferor") and [name of Certificate Registrar], as
Certificate Registrar, with respect to the mortgage pass-through certificate
being transferred (the "Transferred Certificates") as described in the
Transferee Certificate to which this certification relates and to which this
certification is an Annex:
1. As indicated below, the undersigned is the chief financial
officer, a person fulfilling an equivalent function, or other executive officer
of the entity purchasing the Transferred Certificates (the "Transferee") or, if
the Transferee is a "qualified institutional buyer" as that term is defined in
Rule144A under the Securities Act of 1933, as amended ("Rule144A") because the
Transferee is part of a Family of Investment Companies (as defined below), is an
executive officer of the investment adviser (the "Adviser").
2. The Transferee is a "qualified institutional buyer" as
defined in Rule144A because (i) the Transferee is an investment company
registered under the Investment Company Act of 1940, as amended, and (ii) as
marked below, the Transferee alone owned and/or invested on a discretionary
basis, or the Transferee's Family of Investment Companies owned, at least
$100,000,000 in securities (other than the excluded securities referred to
below) as of the end of the Transferee's most recent fiscal year. For purposes
of determining the amount of securities owned by the Transferee or the
Transferee's Family of Investment Companies, the cost of such securities was
used, unless the Transferee or any member of the Transferee's Family of
Investment Companies, as the case may be, reports its securities holdings in its
financial statements on the basis of their market value, and no current
information with respect to the cost of those securities has been published, in
which case the securities of such entity were valued at market.
____ The Transferee owned and/or invested on a discretionary basis
$___________________ in securities (other than the excluded securities
referred to below) as of the end of the Transferee's most recent fiscal
year (such amount being calculated in accordance with Rule144A).
____ The Transferee is part of a Family of Investment Companies which owned
in the aggregate $______________ in securities (other than the excluded
securities referred to below) as of the end of the Transferee's most
recent fiscal year (such amount being calculated in accordance with
Rule144A).
3. The term "Family of Investment Companies" as used herein
means two or more registered investment companies (or series thereof) that have
the same investment adviser or investment advisers that are affiliated (by
virtue of being majority owned subsidiaries of the same parent or because one
investment adviser is a majority owned subsidiary of the other).
3
<PAGE> 387
4. The term "securities" as used herein does not include (i)
securities of issuers that are affiliated with the Transferee or are part of the
Transferee's Family of Investment Companies, (ii) bank deposit notes and
certificates of deposit, (iii) loan participations, (iv) repurchase agreements,
(v) securities owned but subject to a repurchase agreement and (vi) currency,
interest rate and commodity swaps. For purposes of determining the aggregate
amount of securities owned and/or invested on a discretionary basis by the
Transferee, or owned by the Transferee's Family of Investment Companies, the
securities referred to in this paragraph were excluded.
5. The Transferee is familiar with Rule144A and understands
that the parties to which this certification is being made are relying and will
continue to rely on the statements made herein because one or more sales to the
Transferee will be in reliance on Rule144A.
___ ___ Will the Transferee be purchasing the Transferred
Certificates only for the Transferee's own account?
Yes No
6. If the answer to the foregoing question is "no", then in
each case where the Transferee is purchasing for an account other than its own,
such account belongs to a third party that is itself a "qualified institutional
buyer" within the meaning of Rule144A, and the "qualified institutional buyer"
status of such third party has been established by the Transferee through one or
more of the appropriate methods contemplated by Rule144A.
7. The undersigned will notify the parties to which this
certification is made of any changes in the information and conclusions herein.
Until such notice, the Transferee's purchase of the Transferred Certificates
will constitute a reaffirmation of this certification by the undersigned as of
the date of such purchase.
------------------------------------
Print Name of Transferee or Adviser
By:
---------------------------------
Name:
Title:
IF AN ADVISER:
----------------------------------------
Print Name of Transferee
Date:
-----------------------------------
4
<PAGE> 388
EXHIBIT D-2B
FORM II OF TRANSFEREE CERTIFICATE
FOR TRANSFERS OF DEFINITIVE
PRIVATELY OFFERED CERTIFICATES
[Date]
[CERTIFICATE REGISTRAR]
Re: Morgan Stanley Capital I Inc., Commercial Mortgage
Pass-Through Certificates, Series 1998-WF1 (the
"Certificates")
Ladies and Gentlemen:
This letter is delivered to you in connection with the
transfer by _______________________ (the "Transferor") to
_______________________________ (the "Transferee") of Class ___ Certificates
[having an initial Certificate Principal Balance as of March __, 1998 (the
"Closing Date") of $__________][evidencing a ____% Percentage Interest in the
related Class] (the "Transferred Certificates"). The Certificates, including the
Transferred Certificates, were issued pursuant to the Pooling and Servicing
Agreement, dated as of March 1, 1998 (the "Pooling and Servicing Agreement"),
among Morgan Stanley Capital I Inc., as depositor (the "Depositor"), Wells Fargo
Bank, National Association, as master servicer, CRIIMI MAE Services Limited
Partnership, 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 Transferee hereby certifies, represents and warrants to
you, as Certificate Registrar, that:
1. The Transferee is acquiring the Transferred Certificates
for its own account for investment and not with a view to or for sale or
transfer in connection with any distribution thereof, in whole or in part, in
any manner which would violate the Securities Act of 1933, as amended (the
"Securities Act"), or any applicable state securities laws.
2. The Transferee understands that (a) the Class of
Certificates to which the Transferred Certificates belong has not been and will
not be registered under the Securities Act or registered or qualified under any
applicable state securities laws, (b) none of the Depositor, the Trustee or the
Certificate Registrar is obligated so to register or qualify the Class of
Certificates to which the Transferred Certificates belong, and (c) no
Transferred Certificate may be resold or transferred unless it is (i) registered
pursuant to the Securities Act and registered or qualified pursuant any
applicable state securities laws or (ii) sold or transferred in transactions
which are exempt from such registration and qualification and the Certificate
Registrar has received either: (A) a certificate from the Certificateholder
desiring to effect such transfer substantially in the form attached as Exhibit
D-1 to the Pooling and Servicing Agreement and a certificate from such
Certificateholder's prospective transferee substantially in the form attached
either as Exhibit D-2A or as Exhibit D-2B to the Pooling and Servicing
Agreement; or (C) an
1
<PAGE> 389
opinion of counsel satisfactory to the Trustee with respect to the availability
of such exemption from registration under the Securities Act, together with
copies of the written certification(s) from the transferor and/or transferee
setting forth the facts surrounding the transfer upon which such opinion is
based.
3. The Transferee understands that it may not sell or
otherwise transfer any Transferred Certificate except in compliance with the
provisions of Section 3.3 of the Pooling and Servicing Agreement, which
provisions it has carefully reviewed, and that each Transferred Certificate will
bear the following legends:
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT")
OR THE SECURITIES LAWS OF ANY STATE. ANY RESALE, TRANSFER OR
OTHER DISPOSITION OF THIS CERTIFICATE OR ANY INTEREST HEREIN
WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN
A TRANSACTION WHICH DOES NOT REQUIRE SUCH REGISTRATION OR
QUALIFICATION AND WHICH IS IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 3.3 OF THE POOLING AND SERVICING AGREEMENT REFERRED
TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR
OTHER RETIREMENT ARRANGEMENT THAT IS SUBJECT TO THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"),
OR THE INTERNAL REVENUE CODE OF 1986 (THE "CODE"), OR TO ANY
PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS
CERTIFICATE ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE
OF, OR WITH ASSETS OF ANY SUCH EMPLOYEE BENEFIT PLAN OR OTHER
RETIREMENT ARRANGEMENT, WILL BE REGISTERED EXCEPT IN
COMPLIANCE WITH THE PROCEDURES DESCRIBED HEREIN.
4. Neither the Transferee nor anyone acting on its behalf has (a)
offered, pledged, sold, disposed of or otherwise transferred any Transferred
Certificate, any interest in any Transferred Certificate or any other similar
security to any person in any manner, (b) solicited any offer to buy or accept a
pledge, disposition or other transfer of any Transferred Certificate, any
interest in any Transferred Certificate or any other similar security from any
person in any manner, (c) otherwise approached or negotiated with respect to any
Transferred Certificate, any interest in any Certificate or any other similar
security with any person in any manner, (d) made any general solicitation with
respect to any Certificate, any interest in any Transferred Certificate or any
other similar security by means of general advertising or in any other manner,
or (e) taken any other action with respect to any Transferred Certificate, any
interest in any Transferred Certificate or any other similar security, which (in
the case of any of the acts described in clauses (a) through (e) above) would
constitute a distribution of the Transferred Certificates under the Securities
Act, would render the disposition of the Transferred Certificates a violation of
Section 5 of the Securities Act or any state securities law or would
2
<PAGE> 390
require registration or qualification of the Transferred Certificates pursuant
thereto. The Transferee will not act, nor has it authorized or will it authorize
any person to act, in any manner set forth in the foregoing sentence with
respect to any Transferred Certificate, any interest in any Transferred
Certificate or any other similar security.
5. The Transferee has been furnished with all information
regarding (a) the Depositor, (b) the Transferred Certificates and distributions
thereon, (c) the Pooling and Servicing Agreement and the Trust Fund created
pursuant thereto, (d) the nature, performance and servicing of the Mortgage
Loans, and (e) all related matters, that it has requested.
6. The Transferee is an "accredited investor" as defined in
any of paragraphs (1), (2), (3) and (7) of Rule 501(a) under the Securities Act
or an entity in which all of the equity owners come within such paragraphs. The
Transferee has such knowledge and experience in financial and business matters
as to be capable of evaluating the merits and risks of an investment in the
Transferred Certificate; the Transferee has sought such accounting, legal and
tax advice as it has considered necessary to make an informed investment
decision; and the Transferee is able to bear the economic risks of such
investment and can afford a complete loss of such investment.
Very truly yours,
------------------------------------
(Transferee)
By:
---------------------------------
Name:
---------------------------------
Title:
---------------------------------
3
<PAGE> 391
EXHIBIT D-3A
FORM I OF TRANSFEREE CERTIFICATE
FOR TRANSFERS OF INTERESTS IN
BOOK-ENTRY PRIVATELY OFFERED CERTIFICATES
[Date]
[TRANSFEROR]
Re: Morgan Stanley Capital I Inc., Commercial Mortgage
Pass-Through Certificate, Series 1998-WF1, Class __ (the
"Certificates")
Dear Sirs:
This letter is delivered to you in connection with the
transfer by _____________________ (the "Transferor") to ______________________
(the "Transferee") of a Certificate (the "Transferred Certificate") having an
initial principal balance as of March ___, 1998 (the "Closing Date") of
$__________. The Certificates were issued pursuant to the Pooling and Servicing
Agreement (the "Pooling and Servicing Agreement"), dated as of March 1, 1998,
among Morgan Stanley Capital I Inc., as depositor (the "Depositor"), Wells Fargo
Bank, National Association, as master servicer, CRIIMI MAE Services Limited
Partnership, as special servicer, LaSalle National Bank, as trustee, and ABN
AMRO Bank N.V., as fiscal agent. All terms used herein and not otherwise defined
shall have the meanings set forth in the Pooling and Servicing Agreement. The
Transferee hereby certifies, represents and warrants to you, and for the benefit
of the Depositor and the Trustee, that:
1. The Transferee is acquiring the Transferred Certificate for
its own account for investment and not with a view to or for sale or transfer in
connection with any distribution thereof, in whole or in part, in any manner
which would violate the Securities Act of 1933, as amended (the "Securities
Act"), or any applicable state securities laws.
2. The Transferee understands that (a) the Certificates have
not been and will not be registered under the Securities Act or registered or
qualified under any applicable state securities laws, (b) none of the Depositor,
the Trustee or the Certificate Registrar is obligated so to register or qualify
the Certificates and (c) no interest in the Certificates may be sold or
transferred unless (i) such Certificates are registered pursuant to the
Securities Act and registered or qualified pursuant to any applicable state
securities laws or (ii) such interest sold or transferred in transactions which
are exempt from such registration and qualification and the Certificate Owner
desiring to effect such transfer has received either (A) a certification from
such Certificate Owner's prospective transferee (substantially in the form
attached to the Pooling and Servicing Agreement) setting forth the facts
surrounding the transfer or (B) an opinion of counsel satisfactory to the
Certificate Registrar with respect to the availability of such exemption,
together with copies of the certification(s) from the transferor and/or
transferee setting forth the facts surrounding the transfer upon which such
opinion is based.
D-3A-1
<PAGE> 392
3. The Transferee understands that it may not sell or
otherwise transfer any portion of its interest in the Transferred Certificate
except in compliance with the provisions of Section 3.3 of the Pooling and
Servicing Agreement, which provisions it has carefully reviewed, and that the
Transferred Certificate will bear legends substantially to the following effect:
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR
QUALIFIED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"),
OR THE SECURITIES LAWS OF ANY STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION
OF THIS CERTIFICATE WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY
IN A TRANSACTION WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND
IN ACCORDANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
- AND -
NO TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR
OTHER RETIREMENT ARRANGEMENT THAT IS SUBJECT TO THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE"), OR TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY
PURCHASING THIS CERTIFICATE ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF,
OR WITH ASSETS OF ANY SUCH EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT, WILL BE REGISTERED EXCEPT IN COMPLIANCE WITH THE PROCEDURES
DESCRIBED HEREIN.
4. Neither the Transferee nor anyone acting on its behalf has
(a) offered, pledged, sold, disposed of or otherwise transferred any
Certificate, any interest in any Certificate or any other similar security to
any person in any manner, (b) solicited any offer to buy or accept a pledge,
disposition or other transfer of any Certificate, any interest in any
Certificate or any other similar security from any person in any manner, (c)
otherwise approached or negotiated with respect to any Certificate, any interest
in any Certificate or any other similar security with any person in any manner,
(d) made any general solicitation by means of general advertising or in any
other manner, or (e) taken any other action, that (in the case of any of the
acts described in clauses (a) through (e) above) would constitute a distribution
of any Certificate under the Securities Act, would render the disposition of any
Certificate a violation of Section 5 of the Securities Act or any state
securities law or would require registration or qualification of any Certificate
pursuant thereto. The Transferee will not act, nor has it authorized or will it
authorize any person to act, in any manner set forth in the foregoing sentence
with respect to any Certificate.
5. The Transferee has been furnished with all information
regarding (a) the Depositor, (b) the Transferred Certificates and distributions
thereon, (c) the Pooling and Servicing Agreement, and (d) all related matters,
that it has requested.
6. The Transferee is an institutional "accredited investor" as
defined in Rule 501(a) (1), (2), (3) or (7) under the Securities Act and has
such knowledge and experience in
D-3A-2
<PAGE> 393
financial and business matters as to be capable of evaluating the merits and
risks of an investment in the Certificates; the Transferee has sought such
accounting, legal and tax advice as it has considered necessary to make an
informed investment decision; and the Transferee is able to bear the economic
risks of such an investment and can afford a complete loss of such investment.
Very truly yours,
------------------------------------
(Transferee)
By:
---------------------------------
Name:
---------------------------------
Title:
---------------------------------
D-3A-3
<PAGE> 394
EXHIBIT D-3B
FORM II OF TRANSFEREE CERTIFICATE
FOR TRANSFERS OF INTERESTS IN
BOOK-ENTRY PRIVATELY OFFERED CERTIFICATES
[Date]
[TRANSFEROR]
Re: Morgan Stanley Capital I Inc., Commercial Mortgage
Pass-Through Certificate, Series 1998-WF1, Class __ (the
"Certificates")
Dear Sirs:
This letter is delivered to you in connection with the
transfer by _____________ ________ (the "Transferor") to ______________________
(the "Transferee") of a Certificate (the "Transferred Certificate") having an
initial principal balance as of March ___, 1998 (the "Closing Date") of
$__________. The Certificates were issued pursuant to the Pooling and Servicing
Agreement (the "Pooling and Servicing Agreement"), dated as of March 1, 1998,
among Morgan Stanley Capital I Inc., as depositor (the "Depositor"), Wells Fargo
Bank, National Association, as master servicer, CRIIMI MAE Services Limited
Partnership, as special servicer, LaSalle National Bank, as trustee, and ABN
AMRO Bank N.V., as fiscal agent. All terms used herein and not otherwise defined
shall have the meanings set forth in the Pooling and Servicing Agreement. The
Transferee hereby certifies, represents and warrants to you, and for the benefit
of the Depositor and the Trustee, that:
1. The Transferee is a "qualified institutional
buyer" as that term is defined in Rule 144A ("Rule 144A") under the
Securities Act of 1933, as amended (the "Securities Act"), and has
completed one of the forms of certification to that effect attached
hereto as Annex 1 and Annex 2. The Transferee is aware that the sale to
it is being made in reliance on Rule 144A. The Transferee is acquiring
the Transferred Certificate for its own account or for the account of a
qualified institutional buyer, and understands that such Certificate or
any interest therein may be resold, pledged or transferred only (i) to
a person reasonably believed to be a qualified institutional buyer that
purchases for its own account or for the account of a qualified
institutional buyer to whom notice is given that the resale, pledge or
transfer is being made in reliance on Rule 144A, or (ii) pursuant to
another exemption from registration under the Securities Act.
2. The Transferee understands that (a) the Class of
Certificates to which the Transferred Certificate belongs have not been
and will not be registered under the Securities Act or registered or
qualified under any applicable state securities laws, (b) none of the
Depositor, the Trustee or the Certificate Registrar is obligated so to
register or qualify the Certificates and (c) no interest in the
Certificates may be sold or transferred unless (i) such Certificates
are registered pursuant to the Securities Act and registered or
qualified pursuant to any applicable state securities laws or (ii) such
interest sold or transferred in transactions which are exempt from such
registration and qualification and
1
<PAGE> 395
the Certificate Owner desiring to effect such transfer has received
either (A) a certification from such Certificate Owner's prospective
transferee (substantially in the form attached to the Pooling and
Servicing Agreement) setting forth the facts surrounding the transfer
or (B) an opinion of counsel satisfactory to the Certificate Registrar
with respect to the availability of such exemption, together with
copies of the certification(s) from the transferor and/or transferee
setting forth the facts surrounding the transfer upon which such
opinion is based.
3. The Transferee understands that it may not sell or
otherwise transfer any portion of its interest in the Transferred Certificate
except in compliance with the provisions of Section 3.3 of the Pooling and
Servicing Agreement, which provisions it has carefully reviewed, and that the
Transferred Certificate will bear legends substantially to the following effect:
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR
QUALIFIED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"),
OR THE SECURITIES LAWS OF ANY STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION
OF THIS CERTIFICATE WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY
IN A TRANSACTION WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND
IN ACCORDANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
- AND -
NO TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR
OTHER RETIREMENT ARRANGEMENT THAT IS SUBJECT TO THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE"), OR TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY
PURCHASING THIS CERTIFICATE ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF,
OR WITH ASSETS OF ANY SUCH EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT, WILL BE REGISTERED EXCEPT IN COMPLIANCE WITH THE PROCEDURES
DESCRIBED HEREIN.
2
<PAGE> 396
4. The Transferee has been furnished with all information
regarding (a) the Certificates and distributions thereon, (b) the nature,
performance and servicing of the Mortgage Loans, (c) the Pooling and Servicing
Agreement, and (d) any credit enhancement mechanism associated with the
Transferred Certificate, that it has requested.
Very truly yours,
------------------------------------
(Transferee)
By:
---------------------------------
Name:
---------------------------------
Title:
---------------------------------
3
<PAGE> 397
ANNEX 1 TO EXHIBIT D-3B
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Transferees Other Than Registered Investment Companies]
The undersigned hereby certifies as follows to [name of
Transferor] (the "Transferor"), and for the benefit of the Depositor and the
Trustee, as Certificate Registrar, with respect to the commercial mortgage
pass-through certificate being transferred (the "Transferred Certificate") as
described in the Transferee Certificate to which this certification relates and
to which this certification is an Annex:
1. As indicated below, the undersigned is the chief financial
officer, a person fulfilling an equivalent function, or other executive officer
of the entity purchasing the Transferred Certificate (the "Transferee").
2. The Transferee is a "qualified institutional buyer" as that
term is defined in Rule 144A under the Securities Act of 1933, as amended ("Rule
144A"), because (i) the Transferee owned and/or invested on a discretionary
basis $______________________ in securities (other than the excluded securities
referred to below) as of the end of the Transferee's most recent fiscal year
(such amount being calculated in accordance with Rule 144A) and (ii) the
Transferee satisfies the criteria in the category marked below.
___ Corporation, etc. The Transferee is a corporation
(other than a bank, savings and loan association or
similar institution), Massachusetts or similar
business trust, partnership, or any organization
described in Section 501(c)(3) of the Internal
Revenue Code of 1986, as amended.
___ Bank. The Transferee (a) is a national bank or a
banking institution organized under the laws of any
State, U.S. territory or the District of Columbia,
the business of which is substantially confined to
banking and is supervised by the State or territorial
banking commission or similar official or is a
foreign bank or equivalent institution, and (b) has
an audited net worth of at least $25,000,000 as
demonstrated in its latest annual financial
statements, a copy of which is attached hereto, as of
a date not more than 16 months preceding the date of
sale of the Certificate in the case of a U.S. bank,
and not more than 18 months preceding such date of
sale for a foreign bank or equivalent institution.
___ Savings and Loan. The Transferee (a) is a savings and
loan association, building and loan association,
cooperative bank, homestead association or similar
institution, which is supervised and examined by a
State or Federal authority having supervision over
any such institutions or is a foreign savings and
loan association or equivalent institution and (b)
has an audited net worth of at least $25,000,000 as
demonstrated in its latest annual financial
statements, a copy of which is attached hereto, as of
a
4
<PAGE> 398
date not more than 16 months preceding the date of
sale of the Certificate in the case of a U.S. savings
and loan association, and not more than 18 months
preceding such date of sale for a foreign savings and
loan association or equivalent institution.
___ Broker-dealer. The Transferee is a dealer registered
pursuant to Section 15 of the Securities Exchange Act
of 1934, as amended.
___ Insurance Company. The Transferee is an insurance
company whose primary and predominant business
activity is the writing of insurance or the
reinsuring of risks underwritten by insurance
companies and which is subject to supervision by the
insurance commissioner or a similar official or
agency of a State, U.S. territory or the District of
Columbia.
___ State or Local Plan. The Transferee is a plan
established and maintained by a State, its political
subdivisions, or any agency or instrumentality of the
State or its political subdivisions, for the benefit
of its employees.
___ ERISA Plan. The Transferee is an employee benefit
plan within the meaning of Title I of the Employee
Retirement Income Security Act of 1974, as amended.
___ Investment Advisor. The Transferee is an investment
advisor registered under the Investment Advisers Act
of 1940, as amended.
___ Other. (Please supply a brief description of the
entity and a cross-reference to the paragraph and
subparagraph under subsection (a)(1) of Rule144A
pursuant to which it qualifies. Note that registered
investment companies should complete Annex2 rather
than this Annex1.)
_________________________________________________
_________________________________________________
_________________________________________________
3. The term "securities" as used herein does not include (i)
securities of issuers that are affiliated with the Transferee, (ii) securities
that are part of an unsold allotment to or subscription by the Transferee, if
the Transferee is a dealer, (iii) bank deposit notes and certificates of
deposit, (iv) loan participations, (v) repurchase agreements, (vi) securities
owned but subject to a repurchase agreement and (vii) currency, interest rate
and commodity swaps. For purposes of determining the aggregate amount of
securities owned and/or invested on a discretionary basis by the Transferee, the
Transferee did not include any of the securities referred to in this paragraph.
4. For purposes of determining the aggregate amount of
securities owned and/or invested on a discretionary basis by the Transferee, the
Transferee used the cost of such securities to the Transferee, unless the
Transferee reports its securities holdings in its financial
5
<PAGE> 399
statements on the basis of their market value, and no current information with
respect to the cost of those securities has been published, in which case the
securities were valued at market. Further, in determining such aggregate amount,
the Transferee may have included securities owned by subsidiaries of the
Transferee, but only if such subsidiaries are consolidated with the Transferee
in its financial statements prepared in accordance with generally accepted
accounting principles and if the investments of such subsidiaries are managed
under the Transferee's direction. However, such securities were not included if
the Transferee is a majority-owned, consolidated subsidiary of another
enterprise and the Transferee is not itself a reporting company under the
Securities Exchange Act of 1934, as amended.
5. The Transferee acknowledges that it is familiar with Rule
144A and understands that the Transferor and other parties related to the
Transferred Certificate are relying and will continue to rely on the statements
made herein because one or more sales to the Transferee may be in reliance on
Rule 144A.
___ ___ Will the Transferee be purchasing the Transferred Certificate
Yes No only for the Transferee's own account?
6. If the answer to the foregoing question is "no", then in
each case where the Transferee is purchasing for an account other than its own,
such account belongs to a third party that is itself a "qualified institutional
buyer" within the meaning of Rule 144A, and the "qualified institutional buyer"
status of such third party has been established by the Transferee through one or
more of the appropriate methods contemplated by Rule144A.
7. The Transferee will notify each of the parties to which
this certification is made of any changes in the information and conclusions
herein. Until such notice is given, the Transferee's purchase of the Transferred
Certificate will constitute a reaffirmation of this certification as of the date
of such purchase. In addition, if the Transferee is a bank or savings and loan
as provided above, the Transferee agrees that it will furnish to such parties
any updated annual financial statements that become available on or before the
date of such purchase, promptly after they become available.
------------------------------------
Print Name of Transferee
By:
---------------------------------
Name:
---------------------------------
Title:
---------------------------------
Date:
---------------------------------
6
<PAGE> 400
ANNEX 2 TO EXHIBIT D-3B
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Transferees That Are Registered Investment Companies]
The undersigned hereby certifies as follows to [name of
Transferor] (the "Transferor") , and for the benefit of the Depositor and the
Trustee, with respect to the commercial mortgage pass-through certificate being
transferred (the "Transferred Certificate") as described in the Transferee
Certificate to which this certification relates and to which this certification
is an Annex:
1. As indicated below, the undersigned is the chief financial
officer, a person fulfilling an equivalent function, or other executive officer
of the entity purchasing the Transferred Certificate (the "Transferee") or, if
the Transferee is a "qualified institutional buyer" as that term is defined in
Rule144A under the Securities Act of 1933, as amended ("Rule144A"), because the
Transferee is part of a Family of Investment Companies (as defined below), is an
executive officer of the investment adviser (the "Adviser").
2. The Transferee is a "qualified institutional buyer" as
defined in Rule144A because (i) the Transferee is an investment company
registered under the Investment Company Act of 1940, as amended, and (ii) as
marked below, the Transferee alone owned and/or invested on a discretionary
basis, or the Transferee's Family of Investment Companies owned, at least
$100,000,000 in securities (other than the excluded securities referred to
below) as of the end of the Transferee's most recent fiscal year. For purposes
of determining the amount of securities owned by the Transferee or the
Transferee's Family of Investment Companies, the cost of such securities was
used, unless the Transferee or any member of the Transferee's Family of
Investment Companies, as the case may be, reports its securities holdings in its
financial statements on the basis of their market value, and no current
information with respect to the cost of those securities has been published, in
which case the securities of such entity were valued at market.
____ The Transferee owned and/or invested on a
discretionary basis $___________________ in securities (other than the
excluded securities referred to below) as of the end of the
Transferee's most recent fiscal year (such amount being calculated in
accordance with Rule144A).
____ The Transferee is part of a Family of Investment
Companies which owned in the aggregate $______________ in securities
(other than the excluded securities referred to below) as of the end of
the Transferee's most recent fiscal year (such amount being calculated
in accordance with Rule144A).
3. The term "Family of Investment Companies" as used herein
means two or more registered investment companies (or series thereof) that have
the same investment adviser or investment advisers that are affiliated (by
virtue of being majority owned subsidiaries of the same parent or because one
investment adviser is a majority owned subsidiary of the other).
7
<PAGE> 401
4. The term "securities" as used herein does not include (i)
securities of issuers that are affiliated with the Transferee or are part of the
Transferee's Family of Investment Companies, (ii) bank deposit notes and
certificates of deposit, (iii) loan participations, (iv) repurchase agreements,
(v) securities owned but subject to a repurchase agreement and (vi) currency,
interest rate and commodity swaps. For purposes of determining the aggregate
amount of securities owned and/or invested on a discretionary basis by the
Transferee, or owned by the Transferee's Family of Investment Companies, the
securities referred to in this paragraph were excluded.
5. The Transferee is familiar with Rule144A and understands
that the parties to which this certification is being made are relying and will
continue to rely on the statements made herein because one or more sales to the
Transferee will be in reliance on Rule144A.
___ ___ Will the Transferee be purchasing the Transferred Certificate
Yes No only for the Transferee's own account?
6. If the answer to the foregoing question is "no", then in
each case where the Transferee is purchasing for an account other than its own,
such account belongs to a third party that is itself a "qualified institutional
buyer" within the meaning of Rule144A, and the "qualified institutional buyer"
status of such third party has been established by the Transferee through one or
more of the appropriate methods contemplated by Rule144A.
7. The undersigned will notify the parties to which this
certification is made of any changes in the information and conclusions herein.
Until such notice, the Transferee's purchase of the Transferred Certificate will
constitute a reaffirmation of this certification by the undersigned as of the
date of such purchase.
------------------------------------
Print Name of Transferee or Adviser
By:
---------------------------------
Name:
---------------------------------
Title:
---------------------------------
IF AN ADVISER:
------------------------------------
------------------------------------
Print Name of Transferee
Date:
---------------------------------
8
<PAGE> 402
EXHIBIT E-1A
FORM OF TRANSFER AFFIDAVIT AND AGREEMENT
FOR TRANSFERS OF REMIC RESIDUAL CERTIFICATES
STATE OF )
) ss:
COUNTY OF )
____________________, being first duly sworn, deposes and says
that:
1. He/She is the ____________________ of ____________________
(the prospective transferee (the "Transferee") of Morgan Stanley Capital I Inc.,
Mortgage Pass-Through Certificates, Series 1998-WF1, 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.
1
<PAGE> 403
4. The Transferee is aware of the tax imposed on a
"pass-through entity" holding the Residual Certificates if at any time during
the taxable year of the pass-through entity a non-Permitted Transferee is the
record holder of an interest in such entity. (For this purpose, a "pass-through
entity" includes a regulated investment company, a real estate investment trust
or common trust fund, a partnership, trust or estate, and certain cooperatives.)
5. The Transferee is aware that the Certificate Registrar will
not register any transfer of the Residual Certificates by the Transferee unless
the Transferee's transferee, or such transferee's agent, delivers to the
Certificate Registrar, among other things, an affidavit and agreement in
substantially the same form as this affidavit and agreement. The Transferee
expressly agrees that it will not consummate any such transfer if it knows or
believes that any representation contained in such affidavit and agreement is
false.
6. The Transferee consents to any additional restrictions or
arrangements that shall be deemed necessary upon advice of counsel to constitute
a reasonable arrangement to ensure that the Residual Certificate will only be
owned, directly or indirectly, by a Permitted Transferee.
7. The Transferee's taxpayer identification number is
_________________.
8. The Transferee has reviewed the provisions of Section
3.3(e) of the Pooling and Servicing Agreement, a description of which provisions
is set forth in the Residual Certificates (in particular, clause (ii)(A) of
Section 3.3(e) which authorizes the Trustee to deliver payments on the Residual
Certificate to a Person other than the Transferee and clause (ii)(B) of Section
3.3(e) which authorizes the Trustee to negotiate a mandatory sale of the
Residual Certificates, in either case, in the event that the Transferee holds
such Residual Certificates in violation of Section 3.3(e)); and the Transferee
expressly agrees to be bound by and to comply with such provisions.
9. No purpose of the Transferee relating to its purchase or
any sale of the Residual Certificates is or will be to impede the assessment or
collection of any tax.
10. The Transferee hereby represents to and for the benefit of
the transferor that the Transferee intends to pay any taxes associated with
holding the Residual Certificates as they become due, fully understanding that
it may incur tax liabilities in excess of any cash flows generated by the
Residual Certificates.
11. The Transferee will, in connection with any transfer that
it makes of the Residual Certificates, deliver to the Certificate Registrar a
representation letter substantially in the form of Exhibit E-2 to the Pooling
and Servicing Agreement in which it will represent and warrant, among other
things, that it is not transferring the Residual Certificates to impede the
assessment or collection of any tax and that it has at the time of such transfer
conducted a reasonable investigation of the financial condition of the proposed
transferee as contemplated by Treasury regulation Section 1.860E-1(c)(4)(i) and
has satisfied the requirements of such provision.
12. The Transferee is a citizen or resident of the United
States, a corporation, a partnership or other entity created or organized in, or
under the laws of, the United States or
2
<PAGE> 404
any political subdivision thereof, or an estate or trust whose income from
sources without the United States is includible in gross income for United
States federal income tax purposes regardless of its connection with the conduct
of a trade or business within the United States.
IN WITNESS WHEREOF, the Transferee has caused this instrument
to be executed on its behalf, pursuant to the authority of its Board of
Directors, by its ____________________ and its corporate seal to be hereunto
attached, attested by its [Assistant] Secretary, this day of ______________,
____.
[NAME OF TRANSFEREE]
By:
__________________________
[Name of Officer]
[Title of Officer]
[Corporate Seal]
ATTEST:
__________________________
[Assistant] Secretary
Personally appeared before me the above-named
____________________, known or proved to me to be the same person who executed
the foregoing instrument and to be the ____________________ of the Transferee,
and acknowledged to me that he/she executed the same as his/her free act and
deed and the free act and deed of the Transferee.
Subscribed and sworn before me this ___ day of
_____________________, _____.
_________________________________
NOTARY PUBLIC
COUNTY OF
______________________
STATE OF
______________________
My Commission expires the _________ day of
___________, 19__.
3
<PAGE> 405
EXHIBIT E-1B
FORM OF TRANSFEROR CERTIFICATE FOR TRANSFERS OF
REMIC RESIDUAL CERTIFICATES
_______________, 19__
LaSalle National Bank, as Trustee
Corporate Trust Office
135 S. LaSalle Street, Suite 1625
Chicago, Illinois 60674-4107
Re: Morgan Stanley Capital I Inc., Commercial Mortgage
Pass-Through Certificates, Series 1998-WF1 (the
"Certificates")
Dear Sirs:
This letter is delivered to you in connection with the
transfer by _________________ (the "Transferor") to _________________ (the
"Transferee") of [Class R-I] [Class R-II] [Class R-III] Certificates evidencing
a ____% Percentage Interest in such Class (the "Residual Certificates"). The
Certificates, including the Residual Certificates, were issued pursuant to the
Pooling and Servicing Agreement, dated as of March 1, 1998 (the "Pooling and
Servicing Agreement"), among Morgan Stanley Capital I Inc., as Depositor, Wells
Fargo Bank, National Association, as Master Servicer, CRIIMI MAE Services
Limited Partnership, as Special Servicer, LaSalle National Bank, as Trustee, and
ABN AMRO Bank N.V., as Fiscal Agent. All capitalized terms used but not
otherwise defined herein shall have the respective meanings set forth in the
Pooling and Servicing Agreement. The Transferor hereby certifies, represents and
warrants to you, as Certificate Registrar, that:
1. No purpose of the Transferor relating to the transfer of
the Residual Certificates by the Transferor to the Transferee is or will be to
impede the assessment or collection of any tax.
2. The Transferor understands that the Transferee has
delivered to you a Transfer Affidavit and Agreement in the form attached to the
Pooling and Servicing Agreement. The Transferor does not know or believe that
any representation contained therein is false.
1
<PAGE> 406
3. The Transferor has at the time of this transfer conducted a
reasonable investigation of the financial condition of the Transferee as
contemplated by Treasury regulation Section 1.860E-1(c)(4)(i) and, as a result
of that investigation, the Transferor has determined that the Transferee has
historically paid its debts as they became due and has found no significant
evidence to indicate that the Transferee will not continue to pay its debts as
they become due in the future. The Transferor understands that the transfer of
the Residual Certificates may not be respected for United States income tax
purposes (and the Transferor may continue to be liable for United States income
taxes associated therewith) unless the Transferor has conducted such an
investigation.
Very truly yours,
-----------------------------------
(Transferor)
By:
--------------------------------
Name:
--------------------------------
Title:
--------------------------------
2
<PAGE> 407
EXHIBIT F
FORM OF REGULATION S CERTIFICATE
MORGAN STANLEY CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1998-WF1, CLASS (THE "CERTIFICATES")
TO: Morgan Guaranty Trust Company
of New York, Brussels Office
Euroclear Operation Center
or
CEDEL, S.A.
This is to certify that as of the date hereof, and except as
set forth below, the above-captioned Certificates held by you or on your behalf
for our account are beneficially owned by (a) non-U.S person(s) or (b) U.S.
person(s) who purchased the Certificates in transactions which did not require
registration under the United States Securities Act of 1933, as amended (the
"Securities Act"). As used in this paragraph, the term "U.S. person" has the
meaning given to it by Regulation S under the Securities Act. To the extent that
we hold an interest in any of the Certificates on behalf of person(s) other than
ourselves, we have received certifications from such person(s) substantially
identical to the certifications set forth herein.
We undertake to advise you promptly by tested telex on or
prior to the date on which you intend to submit your certification relating to
the Certificates held by you or on your behalf for our account in accordance
with your operating procedures if any applicable statement herein is not correct
on such date, and in the absence of any such notification it may be assumed that
this certification applies as of such date.
This certification excepts and does not relate to $__________
of such beneficial interest in the above Certificates in respect of which we are
not able to certify and as to which we understand the exercise of any rights to
payments thereon and the exchange for definitive Certificates or for an interest
in definitive Certificates in global form cannot be made until we do so certify.
1
<PAGE> 408
We understand that this certification is required in
connection with certain securities laws of the United States. In connection
therewith, if administrative or legal proceedings are commenced or threatened in
connection with which this certification is or would be relevant, we irrevocably
authorize you to produce this certification to any interested party in such
proceedings.
Dated: __________, 199__
By: _________________________________________
As, or as agent for, the beneficial owner(s)
of the Certificates to which this certificate
relates.
F-2
<PAGE> 409
EXHIBIT G
RESERVED
G-1
<PAGE> 410
EXHIBIT H
FORM OF EXCHANGE CERTIFICATION
__________ __, 199__
TO: The Depository Trust Company
CEDEL BANK, S. A. or
Morgan Guaranty Trust Company
of New York, Brussels Office
Euroclear Operation Center
Wells Fargo Bank, National Association
LaSalle National Bank, as Trustee
Attn: Asset-Backed Securities
Trust Services Group
This is to notify you as to the transfer of the beneficial
interest in $_______________ of Morgan Stanley Capital I Inc. Commercial
Mortgage Pass-Through Certificates, Series 1998-WF1, Class __ (the
"Certificates").
The undersigned is the owner of a beneficial interest in the
Class __ [Rule 144A-IAI Global Certificate] [Regulation S Global Certificate]
and requests that on [INSERT DATE], (i) [Euroclear] [CEDEL] [DTC] debit account
#__________, with respect to $__________ principal denomination of the Class __
[Rule 144A-IAI Global Certificate] [Regulation S Global Certificate] and (ii)
[DTC] [Euroclear] [CEDEL] credit the beneficial interest of the below-named
purchaser, account #__________, in the Class __ [Rule 144A-IAI Global
Certificate] [Regulation S Global Certificate] in the same principal
denomination as follows:
Name:
Address:
Taxpayer I D. No.:
The undersigned hereby represents that this transfer is being
made in accordance with an exemption from the provisions of Section 5 of the
United States Securities Act of 1933, as amended (the "Securities Act"), which
representation is based upon the reasonable belief that the purchaser is [not a
U.S. Person as defined in Regulation S under the Securities Act][a "qualified
institutional buyer," as defined in Rule 144A under the Securities Act, and that
such purchaser has acquired the Certificates in a transaction effected in
accordance with the exemption from the registration requirements of the
Securities Act provided by Rule 144A and, if the purchaser has purchased the
Certificates for one or more accounts for which it is acting as fiduciary or
agent, each such account is a qualified institutional buyer or an institutional
"accredited investor" within the meaning of Rule 501(a)(1), (2), (3) or (7) of
Regulation D of the 1933 Act][an institutional "accredited investor" within the
meaning of Rule 501(a)(1), (2), (3) or
H-1
<PAGE> 411
(7) of Regulation D of the 1933 Act and in accordance with any applicable
securities laws of any state of the United States and, if the purchaser has
purchased the Certificates for one or more accounts for which it is acting as
fiduciary or agent, each such account is a qualified institutional buyer or an
institutional "accredited investor" within the meaning of Rule 501(a)(1), (2),
(3) or (7) of Regulation D of the 1933 Act] and that the purchaser is acquiring
beneficial interests in the applicable Certificate(1) for its own account or for
one or more institutional accounts for which it is acting as fiduciary or agent
in a minimum amount equivalent to not less than U.S. $100,000 and integral
multiples of U.S. $1 in excess thereof for each such account.
Very truly yours,
[NAME OF HOLDER OF CERTIFICATE]
By:
----------------------------------
[Name], [Chief Financial
or other Executive Officer]
- --------------------------
(1) [NOTE: INFORMATION PROVIDED ABOVE WITH RESPECT TO PURCHASER AND THE
FOREGOING REPRESENTATION MUST BE PROVIDED TO THE TRUSTEE UPON ANY
TRANSFER OF CERTIFICATES IF THE CERTIFICATES ARE NO LONGER HELD IN GLOBAL
FORM.]
H-2
<PAGE> 412
EXHIBIT I
FORM OF EUROCLEAR OR CEDEL CERTIFICATE
MORGAN STANLEY CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1998-WF1, CLASS (THE "CERTIFICATES")
TO: LaSalle National Bank, as Trustee
Attn: Asset-Backed Securities
Trust Services Group
This is to certify that, based solely on certifications we
have received in writing, by tested telex or by electronic transmission from
member organizations appearing in our records as persons being entitled to a
portion of the principal amount of the Certificates set forth below (our "Member
Organizations") substantially to the effect set forth in the Pooling and
Servicing Agreement dated as of March 1, 1998 (the "Pooling and Servicing
Agreement") among you, ABN AMRO Bank N.V., CRIIMI Mae Services Limited
Partnership and Wells Fargo Bank, National Association, U.S. $__________
principal amount of the above-captioned Certificates held by us or on our behalf
are beneficially owned by (a) non-U.S. person(s) or (b) U.S. person(s) who
purchased the Certificates in transactions that did not require registration
under the United States Securities Act of 1933, as amended (the "Securities
Act"). As used in this paragraph, the term "U.S. person" has the meaning given
to it by Regulation S under the Securities Act.
We further certify that as of the date hereof we have not
received any notification from any of our Member Organizations to the effect
that the statements made by such Member Organizations with respect to any
interest in the Certificates identified above are no longer true and cannot be
relied upon as of the date hereof.
[On Release Date: We hereby acknowledge that no portion of the
Class __ Regulation S Temporary Global Certificate shall be exchanged for an
interest in the Class __ Regulation S Permanent Global Certificate (as each such
term is defined in the Pooling and Servicing Agreement) with respect to the
portion thereof for which we have not received the applicable certifications
from our Member Organizations.]
[Upon any payments under the Regulation S Temporary Global
Certificate: We hereby agree to hold (and return to the Trustee upon request)
any payments received by us on the Class __ Regulation S Temporary Global
Certificate (as defined in the Pooling and Servicing Agreement) with respect to
the portion thereof for which we have not received the applicable certifications
from our Member Organizations.]
I-1
<PAGE> 413
We understand that this certification is required in
connection with certain securities laws of the United States. In connection
therewith, if administrative or legal proceedings are commenced or threatened in
connection with which this certification is or would be relevant, we irrevocably
authorize you to produce this certification to any interested party in such
proceedings.
Dated:
[MORGAN GUARANTY TRUST COMPANY
OF NEW YORK, Brussels office,
as operator of the Euroclear
System]
or
[CEDEL BANK, S.A.]
By: ____________________________
I-2
<PAGE> 414
EXHIBIT J
FORM OF CERTIFICATE ACCOUNT WIRE TRANSFER AGREEMENT
J-1
<PAGE> 415
EXHIBIT K
FORM OF PROOF OF CERTIFICATEHOLDER STATUS LETTER
[Date]
LaSalle National Bank, as Trustee
135 South LaSalle Street, Suite 1625
Chicago, Illinois 60674-4107
Attention: Asset-Backed Securities Trust Services Group
Re: Morgan Stanley Capital I Inc., Commercial Mortgage
Pass-Through Certificates, Series 1998-WF1
The following information is being provided to the Trustee
under that certain Pooling and Servicing Agreement dated as of March 1, 1998
among LaSalle National Bank, as Trustee, Morgan Stanley Capital I Inc., as
Depositor, Wells Fargo Bank, National Association, as Master Servicer, CRIIMI
MAE Services Limited Partnership, as Special Servicer, and ABN AMRO Bank N.V.,
as Fiscal Agent (the "Pooling and Servicing Agreement"). The information is
being provided to the Trustee for the purpose of providing the Trustee with
proof of the status of the below-described person as a Certificateholder (a
"Certificateholder") of the Pooling and Servicing Agreement as of the date
hereof.
Name of Certificateholder:
Address of Certificateholder:
Aggregate Certificate Balance of Class [ ] Certificate being
held:
Certificateholder's taxpayer identification number:
[Name]
Name:
----------------------------------
Title:
----------------------------------
K-1
<PAGE> 416
EXHIBIT L
FORM OF INSPECTION REPORT
L-1
<PAGE> 417
EXHIBIT M
FORM OF MONTHLY CERTIFICATEHOLDER REPORT
M-1
<PAGE> 418
EXHIBIT N
FORM OF ANNUAL REPORT
N-1
<PAGE> 419
EXHIBIT O
FORM OF SPECIALLY SERVICED ASSET REPORT
O-1
<PAGE> 420
EXHIBIT P
FORM OF SPECIAL SERVICER MONTHLY REPORT
P-1
<PAGE> 421
EXHIBIT Q
FORM OF MORTGAGE LOAN INFORMATION
Q-1
<PAGE> 422
EXHIBIT R-1
REPRESENTATIONS AND WARRANTIES OF WELLS FARGO
IN RESPECT OF WELLS FARGO LOANS
R-1-1
<PAGE> 423
EXHIBIT R-2
REPRESENTATIONS AND WARRANTIES OF MSMC
IN RESPECT OF MSMC LOANS
R-2-1
<PAGE> 424
EXHIBIT R-3
REPRESENTATIONS AND WARRANTIES OF JHREF
IN RESPECT OF JHREF LOANS
R-3-1
<PAGE> 425
EXHIBIT S-1
FORM OF POWER OF ATTORNEY FOR MASTER SERVICER
RECORDING REQUESTED BY:
WELLS FARGO BANK, N.A.
AND WHEN RECORDED MAIL TO:
WELLS FARGO BANK, N.A.
555 Montgomery Street, 17th Floor
San Francisco, CA 94111
Attention:Commercial Mortgage Pass-
Through Series 1998-WF1
Space above this line for Recorder's use
- --------------------------------------------------------------------------------
POWER OF ATTORNEY
(SPECIAL)
KNOW ALL MEN BY THESE PRESENTS, that LASALLE NATIONAL BANK, as
trustee for Morgan Stanley Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 1998-WF1 ("Trustee"), under that certain Pooling and
Servicing Agreement dated as of March 1, 1998 (the "Pooling and Servicing
Agreement"), does hereby nominate, constitute and appoint WELLS FARGO BANK,
NATIONAL ASSOCIATION, as Master Servicer under the Pooling and Servicing
Agreement ("Wells Fargo Bank"), as its true and lawful attorney-in-fact for it
and in its name, place, stead and for its use and benefit:
To perform any and all acts which may be necessary or
appropriate to enable Wells Fargo Bank to service and administer the Mortgage
Loans (as defined in the Pooling and Servicing Agreement) in connection with the
performance by Wells Fargo Bank of its duties as Master Servicer under the
Pooling and Servicing Agreement, giving and granting unto Wells Fargo Bank full
power and authority to do and perform any and every act necessary, requisite, or
proper in connection with the foregoing and hereby ratifying, approving or
confirming all that Wells Fargo Bank shall lawfully do or cause to be done by
virtue hereof.
S-1-1
<PAGE> 426
IN WITNESS WHEREOF, the undersigned has caused this power of
attorney to be executed as of this ___ day of March, 1998.
LASALLE NATIONAL BANK, as trustee for
Morgan Stanley Capital I Inc., Commercial
Mortgage Pass-Through Certificates,
Series 1998-WF1
By:
-------------------------------------
Name:
-------------------------------------
Title:
-------------------------------------
S-1-2
<PAGE> 427
ALL-PURPOSE ACKNOWLEDGEMENT
)
)
)
On _________________ before me, _______________________________________
Date Name and Title of Officer (i.e., Your Name,
Notary Public)
personally appeared____________________________________________________________
Name(s) of Document Signer(s)
________________________________________________________________________________
personally known to me (or proved to me on the basis of satisfactory
evidence) to be the person(s) whose name(s) is/are subscribed to the within
instrument and acknowledged to me that he/she/they executed the same in
his/her/their authorized capacity(ies), and that by his/her/their
signature(s) on the instrument the person(s), or the entity upon behalf of
which the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
____________________________________
Signature of Notary
(Affix seal in the above blank space)
<PAGE> 428
EXHIBIT S-2
FORM OF POWER OF ATTORNEY FOR SPECIAL SERVICER
RECORDING REQUESTED BY:
CRIIMI MAE SERVICES LIMITED PARTNERSHIP
AND WHEN RECORDED MAIL TO:
CRIIMI MAE SERVICES LIMITED PARTNERSHIP
11200 Rockville Pike, 5th Floor
Rockville, Maryland 20852
Attention: Legal Department
Space above this line for Recorder's use
________________________________________________________________________________
POWER OF ATTORNEY
(SPECIAL)
KNOW ALL MEN BY THESE PRESENTS, that LASALLE NATIONAL BANK, as
trustee for Morgan Stanley Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 1998-WF1 ("Trustee"), under that certain Pooling and
Servicing Agreement dated as of March 1, 1998 (the "Pooling and Servicing
Agreement"), does hereby nominate, constitute and appoint CRIIMI MAE SERVICES
LIMITED PARTNERSHIP, as Special Servicer under the Pooling and Servicing
Agreement ("CRIIMI MAE"), as its true and lawful attorney-in-fact for it and in
its name, place, stead and for its use and benefit:
To perform any and all acts which may be necessary or
appropriate to enable CRIIMI MAE to service and administer the Mortgage Loans
(as defined in the Pooling and Servicing Agreement) in connection with the
performance by CRIIMI MAE of its duties as Special Servicer under the Pooling
and Servicing Agreement, giving and granting unto CRIIMI MAE full power and
authority to do and perform any and every act necessary, requisite, or proper in
connection with the foregoing and hereby ratifying, approving or confirming all
that CRIIMI MAE shall lawfully do or cause to be done by virtue hereof.
S-2-1
<PAGE> 429
IN WITNESS WHEREOF, the undersigned has caused this power of
attorney to be executed as of this 1st day of March, 1998.
LASALLE NATIONAL BANK, as trustee for
Morgan Stanley Capital I Inc.,
Commercial Mortgage Pass-Through
Certificates, Series 1998-WF1
By:
-------------------------------------
Name:
-------------------------------------
Title:
-------------------------------------
S-2-2
<PAGE> 430
ALL-PURPOSE ACKNOWLEDGEMENT
)
)
)
On ______________ before me, _______________________________________
Date Name and Title of Officer (i.e., Your Name,
Notary Public)
personally appeared ___________________________________________________________
Name(s) of Document Signer(s)
________________________________________________________________________________
personally known to me (or proved to me on the basis of satisfactory evidence)
to be the person(s) whose name(s) is/are subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity(ies), and that by his/her/their signature(s) on the
instrument the person(s), or the entity upon behalf of which the person(s)
acted, executed the instrument.
WITNESS my hand and official seal.
__________________________________________
Signature of Notary
(Affix seal in the above blank space)
<PAGE> 431
EXHIBIT T
PROCEDURES FOR CALCULATIING DEBT SERVICE COVERAGE RATIO
"Debt Service Coverage Ratios" generally means the ratio of
"Underwritable Cash Flow" estimated to be produced by the related Mortgaged
Property to the annualized amount of debt service payable under that Mortgage
Loan. "Underwritable Cash Flow" in each case is an estimate of stabilized cash
flow available for debt service. In general, it is the estimated stabilized
revenue derived from the use and operation of a Mortgaged Property (consisting
primarily of rental income) less the sum of (a) estimate stabilized operating
expenses (such as utilities, administrative expenses, repairs and maintenance,
management fees and advertising), (b) fixed expenses (such as insurance, real
estate taxes and, if applicable, ground lease payments) and (c) capital
expenditures and reserves for capital expenditures, including tenant improvement
costs and leasing commissions. Underwritable Cash Flow generally does not
reflect interest expenses and non-cash items such as depreciation and
amortization. In determining Underwritable Cash Flow for a Mortgaged Property,
the Master Servicer may rely on rent rolls and other generally unaudited
financial information provided by the respective borrowers and may estimate cash
flow taking into account historical financial statements, material changes in
the operating position of the Mortgaged Property, and estimated capital
expenditures, leasing commission and tenant improvement reserves. The Master
Servicer may make certain changes to operating statements and operating
information obtained from the respective borrowers.
T-1
<PAGE> 432
SCHEDULE I
MSMC LOAN SCHEDULE
S-I-1
<PAGE> 433
SCHEDULE II
WELLS FARGO LOAN SCHEDULE
S-II-1
<PAGE> 434
SCHEDULE III
JHREF LOAN SCHEDULE
S-III-1
