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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of report (Date of earliest event
reported) December 18, 1998
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Credit Suisse First Boston Mortgage Securities Corp.
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(Exact Name of Registrant as Specified in Charter)
Delaware 333-51771 13-3320910
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(State or Other Jurisdiction (Commission File Number) (I.R.S. Employer
of Incorporation) Identification No.)
Eleven Madison Avenue
New York, New York 10010
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(Address of Principal Executive
Offices and Zip Code)
Registrant's telephone number, including area code (212) 325-2000
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<PAGE>
Item 5. Other Events
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On December 18, 1998, Credit Suisse First Boston Mortgage Securities Corp.
(the "Company") executed an Amended and Restated Pooling and Servicing Agreement
dated as of December 18, 1998 (the "Amended and Restated Pooling and Servicing
Agreement"), by and among the Company, as depositor, First Union National Bank,
as servicer (the "Servicer"), Lennar Partners, Inc., as special servicer (the
"Special Servicer"), and The Chase Manhattan Bank, as trustee (the "Trustee").
The Amended and Restated Pooling and Servicing Agreement is annexed hereto as
Exhibit 99.
<PAGE>
Item 7. Financial Statements, Pro Forma Financial Information and Exhibits.
(a) Not applicable.
(b) Not applicable.
(c) Exhibits.
The following is filed herewith. The exhibit number corresponds with Item
601(b) of Regulation S-K.
Exhibit No Description
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99 The Amended and Restated Pooling and
Servicing Agreement, dated as of
December 18, 1998, by and among the
Company, the Servicer, the Special
Servicer and the Trustee, providing for
the issuance of the Credit Suisse First
Boston Mortgage Securities Corp.
Commercial Mortgage Pass-Through
Certificates, Series 1998-C2.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
CREDIT SUISSE FIRST BOSTON MORTGAGE
SECURITIES CORP.
By: /s/ Allan J. Baum
--------------------------------
Name: Allan J. Baum
Title: Vice President
Dated: December 18, 1998
<PAGE>
Exhibit Index
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Exhibit Page
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99 Amended and Restated Pooling and Servicing Agreement 6
Exhibit 99
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CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.,
Depositor
FIRST UNION NATIONAL BANK,
Servicer
LENNAR PARTNERS, INC.,
Special Servicer
THE CHASE MANHATTAN BANK,
Trustee
AMENDED AND RESTATED POOLING AND SERVICING AGREEMENT
Dated as of December 18, 1998
$1,919,275,079
Commercial Mortgage Pass-Through Certificates
Series 1998-C2
<PAGE>
Table of Contents
Page
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ARTICLE I
DEFINITIONS
SECTION 1.01. Defined Terms.............................................. 4
SECTION 1.02. Certain Calculations.......................................59
SECTION 1.03. Loan Identification Convention.............................60
SECTION 1.04. Construction Loan Servicing Account Convention.............60
ARTICLE II
CONVEYANCE OF LOANS; ORIGINAL ISSUANCE OF CERTIFICATES
SECTION 2.01. Conveyance of Loans........................................61
SECTION 2.02. Acceptance by Trustee......................................63
SECTION 2.03. Representations, Warranties and Covenants of the
Depositor; CSFB Mortgage Loan Seller's Repurchase of Loans
for Defects in Mortgage Files and Breaches of Representations
and Warranties.............................................65
SECTION 2.04. Execution of Certificates..................................67
SECTION 2.05. Trust Certificate .........................................67
ARTICLE III
ADMINISTRATION AND SERVICING OF THE TRUST FUND
SECTION 3.01. Servicer to Act as Servicer; Special Servicer to Act as
Special Servicer; Administration of the Loans .............68
SECTION 3.02. Collection of Loan Payments ...............................69
SECTION 3.03. Collection of Taxes, Assessments and Similar Items;
Servicing Accounts ........................................70
SECTION 3.04. The Certificate Account, Distribution Accounts, Excess
Interest Distribution Account and Yield Protection
Payment Account ...........................................73
SECTION 3.05. Permitted Withdrawals from the Certificate Account and the
Distribution Accounts .....................................76
SECTION 3.06. Investment of Funds in the Certificate Account, Servicing
Accounts, Cash Collateral Accounts, Lock-Box Accounts,
Policy Escrow Accounts, the Interest Reserve Account and
the REO Account ...........................................79
SECTION 3.07. Maintenance of Insurance Policies; Errors and Omissions
and Fidelity Coverage .....................................81
SECTION 3.08. Enforcement of Due-On-Sale and Due-On-Encumbrance Clauses;
Assumption Agreements; Defeasance Provisions ..............85
SECTION 3.09. Realization upon Defaulted Loans ..........................89
SECTION 3.10. Trustee to Cooperate; Release of Mortgage Files ...........92
SECTION 3.11. Servicing Compensation ................................... 93
SECTION 3.12. Reports to the Trustee; Certificate Account Statements ....96
SECTION 3.13. Annual Statement as to Compliance ........................100
SECTION 3.14. Reports by Independent Public Accountants ................100
SECTION 3.15. Access to Certain Information ............................101
SECTION 3.16. Title to REO Property; REO Account .......................101
SECTION 3.17. Management of REO Property ...............................102
SECTION 3.18. Sale of Defaulted Loans and REO Properties ...............104
SECTION 3.19. Additional Obligations of the Servicer and Special Servicer;
Inspections; Appraisals ..................................106
SECTION 3.20. Modifications, Waivers, Amendments and Consents ..........108
SECTION 3.21. Transfer of Servicing Between Servicer and Special
Servicer; Record Keeping; Asset Status Report ............112
SECTION 3.22. Sub-Servicing Agreements .................................116
SECTION 3.23. Representations, Warranties and Covenants of the Servicer.118
SECTION 3.24. Representations, Warranties and Covenants of the Special
Servicer .................................................120
SECTION 3.25. Construction Loans .......................................122
SECTION 3.26. RESERVED. ................................................133
SECTION 3.27. Limitation on Liability of the Directing
Certificateholder ........................................133
SECTION 3.28. Reports to the Securities and Exchange Commission;
Available Information ....................................134
SECTION 3.29. Lock-Box Accounts and Servicing Accounts .................136
SECTION 3.30. Interest Reserve Account .................................136
SECTION 3.31. Limitations on and Authorizations of the Servicer and
Special Servicer with Respect to Certain Loans ...........137
SECTION 3.32. REMIC Administration .....................................142
ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS
SECTION 4.01. Distributions ............................................147
SECTION 4.02. Statements to Certificateholders; Reports by Trustee;
Other Information Available to the Holders and Others ....155
SECTION 4.03. P&I Advances; Yield Protection Payment Advances ..........160
SECTION 4.04. Allocation of Collateral Support Deficit .................163
SECTION 4.05. Appraisal Reductions .....................................164
SECTION 4.06. Certificate Deferred Interest ............................165
SECTION 4.07. Grantor Trust Reporting ..................................165
ARTICLE V
THE CERTIFICATES
SECTION 5.01. The Certificates .........................................167
SECTION 5.02. Registration of Transfer and Exchange of Certificates ....169
SECTION 5.03. Book-Entry Certificates ..................................180
SECTION 5.04. Mutilated, Destroyed, Lost or Stolen Certificates ........183
SECTION 5.05. Persons Deemed Owners ....................................183
ARTICLE VI
THE DEPOSITOR, THE SERVICER AND THE SPECIAL SERVICER
SECTION 6.01. Liability of the Depositor, the Servicer and the
Special Servicer .........................................185
SECTION 6.02. Merger, Consolidation or Conversion of the Depositor,
the Servicer or the Special Servicer ....................185
SECTION 6.03. Limitation on Liability ofthe Depositor, the Servicer,
the Special Servicer and Others ..........................185
SECTION 6.04. Depositor, Servicer and Special Servicer Not to Resign ..187
SECTION 6.05. Rights of the Depositor in Respect of the Servicer and
the Special Servicer .....................................188
ARTICLE VII
DEFAULT
SECTION 7.01. Events of Default; Servicer and Special Servicer
Termination ..............................................189
SECTION 7.02. Trustee to Act; Appointment of Successor .................192
SECTION 7.03. Notification to Certificateholders .......................193
SECTION 7.04. Waiver of Events of Default ..............................193
SECTION 7.05. Trustee Advances .........................................194
ARTICLE VIII
CONCERNING THE TRUSTEE
SECTION 8.01. Duties of Trustee ........................................195
SECTION 8.02. Certain Matters Affecting the Trustee ....................196
SECTION 8.03. Trustee Not Liable for Validity or Sufficiency of
Certificates or Loans ....................................197
SECTION 8.04. Trustee May Own Certificates .............................198
SECTION 8.05. Fees and Expenses of Trustee; Indemnification of Trustee .198
SECTION 8.06. Eligibility Requirements for Trustee .....................199
SECTION 8.07. Resignation and Removal of the Trustee ...................199
SECTION 8.08. Successor Trustee ........................................200
SECTION 8.09. Merger or Consolidation of Trustee .......................201
SECTION 8.10. Appointment of Co-Trustee or Separate Trustee ............201
SECTION 8.11. Appointment of Custodians ................................202
SECTION 8.12. Access to Certain Information ............................202
SECTION 8.13. Representations, Warranties and Covenants of the Trustee .204
<PAGE>
ARTICLE IX
TERMINATION; PURCHASE OF ARD LOANS
SECTION 9.01. Termination Upon Repurchase or Liquidation of All Loans .207
SECTION 9.02. Additional Termination Requirements .....................209
SECTION 9.03. Purchase of ARD Loans and Town & Country Loan ...........210
ARTICLE X
MISCELLANEOUS PROVISIONS
SECTION 10.01. Amendment. .............................................211
SECTION 10.02. Recordation of Agreement; Counterparts .................213
SECTION 10.03. Limitation on Rights of Certificateholders .............213
SECTION 10.04. Governing Law ..........................................214
SECTION 10.05. Notices. ...............................................214
SECTION 10.06. Severability of Provisions .............................215
SECTION 10.07. Grant of a Security Interest ...........................215
SECTION 10.08. Successors and Assigns; Beneficiaries ..................215
SECTION 10.09. Article and Section Headings ...........................216
SECTION 10.10. Notices to Rating Agencies .............................216
EXHIBITS
A-1 Form of Class A Certificate
A-2 Form of Class A-X Certificate
A-3 Form of Fixed Rate Mezzanine Certificate
A-4 Form of Variable Rate Private Global Certificate
A-5 [Reserved]
A-6 Form of Variable Rate Private Definitive Certificate
A-7 Form of Class V Certificate
A-8 Form of Residual Certificate
B Mortgage Loan Schedule
C-1 Form of QIB Investment Representation Letter -
Qualified Institutional Buyer
C-2 Form of Regulation S Investment Representation Letter -
Non-U.S. Person
C-3 Form of Investment Representation Letter -
Institutional Accredited Investor
D-1 Form of Transfer Affidavit
D-2 Form of Transferor Letter
E List of Mezzanine Loans
F Form of Request for Release
G Form of Trustee Certificate Pursuant to Section 2.05(a)
H Form of Order of Dissolution and Liquidation
I-1 Form of Comparative Financial Status Report
I-2 Form of Delinquent Loan Status Report
I-3 Form of Historical Loan Modification Report
I-4 Form of Historical Loss Estimation Report
I-5 Form of REO Status Report
I-6 Form of Servicer Watch List
I-7 Form of Operating Statement Analysis Report
J Form of Trustee Letter Pursuant to Section 2.05(c)
K Form of Affidavit of Lost Note
L Form of Draw Request
M Form of Construction Loan Monthly Accounting Report
<PAGE>
This Amended and Restated Pooling and Servicing Agreement (the
"Agreement"), is dated as of December 18, 1998, among Credit Suisse First
Boston Mortgage Securities Corp., as Depositor, First Union National Bank, as
Servicer, Lennar Partners, Inc., as Special Servicer, and The Chase Manhattan
Bank, as Trustee.
PRELIMINARY STATEMENT:
The Depositor intends to sell commercial mortgage pass-through
certificates (collectively, the "Certificates"), to be issued hereunder in
multiple classes (each, a "Class"), which in the aggregate will evidence the
entire beneficial ownership interest in the trust fund (the "Trust Fund") to
be created hereunder, the primary assets of which will be a pool of 217
multifamily and commercial mortgage loans (the "Loans"). As provided herein,
the Trustee shall elect or shall cause an election to be made that each of the
Upper-Tier REMIC, Intermediate-Tier REMIC and the Lower-Tier REMIC (as defined
herein) be treated for federal income tax purposes as a "real estate mortgage
investment conduit" (a "REMIC").
<PAGE>
The following table sets forth the designation, the initial pass-through
rate (the "Pass-Through Rate"), the aggregate initial principal amount (the
"Original Certificate Balance") or notional balance ("Original Notional
Balance"), as applicable, and the initial ratings given each Class (as
indicated below) by the Rating Agencies (as defined herein) for each Class of
certificates comprising the interests in the Upper-Tier REMIC created
hereunder:
UPPER-TIER REMIC
Original Certificate
Balance (or, in the
case of the Class A-X Initial
Class Certificates, Original Ratings(1)
Designation Pass-Through Rate Notional Balance) Fitch/Moody's
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Class A-1 5.96% $364,000,000 AAA/Aaa
Class A-2 6.30% $979,400,000(3) AAA/Aaa
Class A-X (2) $1,919,275,079 AAA/Aaa
Class B 6.59% $105,600,000 AA/Aa2
Class C 6.84% $105,600,000 A/A2
Class D 7.13% $105,500,000 BBB/Baa2
Class E 7.13% $28,800,000 BBB-/Baa3
Class F (4) $105,600,000 BB/Ba2
Class G (4) $19,200,000 BB-/Ba3
Class H (4) $47,900,000 NR/B2
Class I (4) $19,200,000 B-/B3
Class J (4) $38,475,079 NR/NR
Class R None(5) None(5) NA
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(1) The Certificates marked "NR" have not been rated by the applicable Rating
Agency.
(2) The Class A-X Pass-Through Rate, as defined herein.
(3) Original Notional Balance. The Class A-X Certificates will not have a
Certificate Balance and will not be entitled to receive
distributions of principal.
(4) The lesser of 6.75% per annum and the Weighted Average Net Mortgage
Rate (as defined herein).
(5) The Class R Certificates will not have a Certificate Balance or notional
balance, do not bear interest and will not be entitled to distributions of
Prepayment Premiums or Yield Maintenance Charges. Any Available
Distribution Amount remaining in the Upper-Tier Distribution Account after
all required distributions under this Agreement have been made to each
other Class of Certificates will be distributed to the Holders of the Class
R Certificates.
The Class A-1, Class A-2, Class A-X, Class B, Class C, Class D, Class E,
Class F, Class G, Class H, Class I, and Class J Certificates (in each case,
excluding the right to receive Yield Protection Payments) will evidence
"regular interests" in the Upper-Tier REMIC created hereunder. The sole Class
of "residual interests" in the Upper-Tier REMIC created hereunder will be
evidenced by the Class R Certificates. The Class MA1, Class MA2, Class MB,
Class MC, Class MD, Class ME, Class MF, Class MG, Class MH, Class MI and
Class MJ Uncertificated Interests (in each case, excluding the right to
receive Yield Protection Payments) will evidence "regular interests" in the
Intermediate-Tier REMIC (the "Intermediate-Tier REMIC Regular Interests")
created hereunder. The sole Class of "residual interests" in the
Intermediate-Tier REMIC, the Class LR-2 Interest, created hereunder will be
evidenced by the Class LR Certificates.
The following table sets forth the initial Intermediate-Tier Principal
Amounts and per annum rates of interest for the Uncertificated
Intermediate-Tier Interests:
INTERMEDIATE-TIER REMIC
Class Interest Rate Original Lower-Tier Principal
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Class MA-1 (1) $364,000,000
Class MA-2 (1) $979,400,000
Class MB (1) $105,600,000
Class MC (1) $105,600,000
Class MD (1) $105,500,000
Class ME (1) $28,800,000
Class MF (1) $105,600,000
Class MG (1) $19,200,000
Class MH (1) $47,900,000
Class MI (1) $19,200,000
Class MJ (1) $38,475,079
Class LR2 None(2) None(2)
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(1) The interest rate of each of the indicated Classes of Uncertificated
Intermediate-Tier Interests is the Weighted Average Net Mortgage Rate.
(2) The Class LR2 Interests do not have a Certificate Balance or notional
balance, do not bear interest and will not be entitled to distributions
of Prepayment Premiums, Yield Maintenance Charges or Yield Protection
Payments. Any Available Distribution Amount remaining in the
Intermediate-Tier Distribution Account after distributing the
Intermediate-Tier Distribution Amount on each Distribution Date shall be
distributed to the Holders of the Class LR Certificates. The Class LR
Certificates will represent the Class LR2 Interests.
As provided herein, the Trustee will elect to treat the segregated pool
of assets consisting of the Mortgage Loans and certain other related assets
subject to this Agreement as a REMIC for federal income tax purposes, and such
segregated pool of assets will be designated as one "Lower Tier REMIC". The
Class LR-1 Interest will constitute the sole class of "residual interests" in
the Lower Tier REMIC for purposes of the REMIC Provisions under federal income
tax law. The Class LR Certificates will evidence the Class LR-1 Interest. The
Lower Tier REMIC regular interests will have one Lower Tier REMIC Regular
Interest relating to each Mortgage Loan. Each Lower Tier REMIC regular
interest will have a principal balance equal to the Stated Principal Balance
of the related Mortgage Loan as of the related Determination Date and shall
accrue interest at the remittance rate in respect of such related Mortgage
Loan.
The parties intend that (i) the portion of the Trust Fund representing
the Excess Interest Distribution Account, the Yield Protection Payments and
the Yield Protection Payment Account shall be treated as single grantor trust
under Subpart E of Part 1 of Subchapter J of Chapter 1 of Subtitle A of the
Code, (ii) the Class V Certificates shall represent undivided beneficial
interests in the portion of the Trust Fund consisting of the Excess Interest
Distribution Account, and (iii) the Class A-X Certificates and any other Class
of Regular Certificates that receives payment of an Additional Collateral
Prepayment Amount shall (to the extent of such right to receive such payments)
represent undivided beneficial interests in the portion of the Trust Fund
consisting of Yield Protection Payments and the Yield Protection Payment
Account.
As of the close of business on the Cut-off Date (as defined herein), the
Loans had an aggregate principal balance, after application of all payments of
principal due on or before such date, whether or not received, equal to
$1,919,275,079.
In consideration of the mutual agreements herein contained, the
Depositor, the Servicer, the Special Servicer and the Trustee agree as
follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Defined Terms.
Whenever used in this Agreement the following words and phrases, unless
the context otherwise requires, shall have the meanings specified in this
Article.
"A-2 Principal Distribution Amount": With respect to Loan Group 2 and any
Distribution Date, the portion of the Principal Distribution Amount for Loan
Group 2 for such Distribution Date that represents any Balloon Payments and
voluntary Principal Prepayments.
"Accredited Investor": As defined in Section 5.02(b).
"Accountant's Statement": As defined in Section 3.14.
"Accrued Certificate Interest Amount": With respect to each Distribution
Date and each Class of Regular Certificates, an amount equal to interest for
the related Interest Accrual Period at the Pass-Through Rate applicable to
such Class of Certificates for such Distribution Date, accrued on the related
Certificate Balance of such Class (or, in the case of the Class A-X
Certificates, on the Notional Balance thereof) immediately prior to such
Distribution Date, commencing in the month of the Closing Date. The Accrued
Certificate Interest Amount for each such Class shall be calculated on the
basis of a 360-day year composed of twelve 30-day months.
"Acquisition Date": With respect to any REO Property, the first day on
which such REO Property is considered to be acquired by the Trust Fund and the
Lower-Tier REMIC within the meaning of Treasury regulation section
1.856-6(b)(1), which is the first day on which the Lower-Tier REMIC is treated
as the owner of such REO Property for federal income tax purposes.
"Actual/360 Loans": The Loans indicated by the term "Act/360" under the
column heading "Interest Calc." in the Mortgage Loan Schedule.
"Additional Collateral": With respect to each Additional Collateral Loan,
a cash reserve or irrevocable letter of credit partially securing such
Additional Collateral Loan.
"Additional Collateral Loan": Any one of the Loans designated as Loan
Nos. 31, 54 and 78 in the Mortgage Loan Schedule.
"Additional Collateral Prepayment Amount": As to any Distribution Date
and any Additional Collateral Loan, the amount of the related Additional
Collateral paid as a Principal Prepayment on such Additional Collateral Loan
during the related Due Period as a result of the related Borrower's failure to
satisfy the conditions entitling the Borrower to receive payment of such
Additional Collateral (other than by reason of an event of default under such
Additional Collateral Loan).
"Advance": Any P&I Advance or Servicing Advance.
"Adverse REMIC Event": As defined in Section 3.32.
"Affiliate": With respect to any specified Person, any other Person
controlling or controlled by or under common control with such specified
Person. For the purposes of this definition, "control" when used with respect
to any specified Person means the power to direct the management and policies
of such Person, directly or indirectly, whether through the ownership of
voting securities, by contract or otherwise and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"Agent": As defined in Section 5.02(d)(i)(A).
"Agreement": This Pooling and Servicing Agreement and all amendments
hereof and supplements hereto.
"Annual Compliance Report": A report consisting of an annual statement of
compliance required by Section 3.13 hereof and an annual report of an
Independent accountant required pursuant to Section 3.14 hereof.
"Anticipated Repayment Date": With respect to any ARD Loan, designated as
such on the Mortgage Loan Schedule, the date upon which such ARD Loan starts
to accrue interest at its Revised Rate.
"Appraisal": An appraisal prepared in accordance with 12 C.F.R. ss.225.64
by an Appraiser selected by the Servicer or Special Servicer, as applicable.
"Appraisal Reduction": For any Distribution Date and for any Loan as to
which an Appraisal Reduction Event has occurred, an amount calculated by the
Special Servicer equal to the excess, if any, of (a) the Stated Principal
Balance of such Loan over (b) the excess of (i) 90% of the Appraised Value of
the related Mortgaged Property as determined (A) with respect to any Loan with
an outstanding principal balance equal to or greater than $2,000,000, by one
or more Appraisals (the costs of which shall be paid by the Servicer as a
Servicing Advance) or (B) with respect to any Loan with an outstanding
principal balance less than $2,000,000, by an Appraisal (or an update of a
prior Appraisal) or an internal valuation performed by the Special Servicer
over (ii) the sum of (X) to the extent not previously advanced by the Servicer
or the Trustee, all unpaid interest on such Loan at a per annum rate equal to
its Mortgage Rate, (Y) all unreimbursed Advances in respect of such Loan
together with interest thereon at the Reimbursement Rate (except as otherwise
provided in Section 4.03(d)) and (Z) all currently due and unpaid real estate
taxes and assessments, Insurance Policy premiums, ground rents and all other
amounts due and unpaid with respect to such Loan, net of any amounts currently
escrowed for such amounts (which taxes, assessments, premiums, ground rents
and other amounts have not been subject to an Advance by the Servicer or the
Trustee and/or for which funds have not been escrowed).
Notwithstanding anything herein to the contrary, the aggregate Appraisal
Reduction related to a Loan or the related REO Property will be reduced to
zero as of the date such Loan is paid in full, liquidated, repurchased or
otherwise removed from the Trust Fund.
"Appraisal Reduction Amount": With respect to any Distribution Date and
any Loan for which an Appraisal Reduction has been calculated, an amount equal
to the product of (i) the Reduction Rate for such Distribution Date and (ii)
the Appraisal Reduction with respect to such Loan.
"Appraisal Reduction Event": With respect to any Loan, the earliest of
(i) the third anniversary of the date on which the first extension of the
Maturity Date of such Loan becomes effective as a result of a modification of
such Loan by the Special Servicer pursuant to the terms hereof, which
extension does not decrease the aggregate amount of Monthly Payments on the
Loan, (ii) 120 days after an uncured delinquency (without regard to the
application of any grace period) occurs in respect of such Loan, (iii) the
date on which a reduction in the amount of Monthly Payments on such Loan, or a
change in any other material economic term of such Loan (other than an
extension of the Maturity Date), becomes effective as a result of a
modification of such Loan by the Special Servicer, (iv) 60 days after a
receiver has been appointed for the Mortgagor or the related Mortgaged
Property, (v) 60 days after a Mortgagor declares bankruptcy or has become the
subject of a decree or order for a bankruptcy proceeding that shall have
remained in force undischarged and unstayed, and (vi) immediately after a Loan
becomes an REO Loan; provided, however, that an Appraisal Reduction Event
shall not be deemed to occur at any time on and after the dates when the
aggregate Certificate Balances of all Classes of Certificates (other than the
Class A Certificates) have been reduced to zero. The Special Servicer shall
notify the Servicer promptly upon the occurrence of any of the foregoing
events.
"Appraised Value": With respect to any Mortgaged Property, the appraised
value thereof as determined by an Appraisal.
"Appraiser": An Independent nationally recognized MAI, state certified
organization with five years of experience in properties of like kind and in
the same geographic area.
"Approved Annual Budget": As defined in Section 3.31(k).
"ARD Loan": A Loan that is designated as such on the Mortgage Loan
Schedule.
"Asset Status Report": As defined in Section 3.21(e).
"Assignment of Leases": With respect to any Mortgaged Property, any
assignment of leases, rents and profits or similar instrument, executed by the
related Mortgagor, assigning to the related mortgagee all of the income, rents
and profits derived from the ownership, operation, leasing or disposition of
all or a portion of such Mortgaged Property, in the form which was duly
executed, acknowledged and delivered, as amended, modified, renewed or
extended through the date hereof and from time to time hereafter.
"Assumed Scheduled Payment": For any Due Period and with respect to any
Loan that is delinquent in respect of its Balloon Payment (including any REO
Loan as to which the Balloon Payment would have been past due), an amount
equal to the sum of (a) the principal portion of the Monthly Payment that
would have been due on such Loan on the related Due Date based on the constant
payment required by the related Note or the original amortization schedule
thereof (as calculated with interest at the related Mortgage Rate), if
applicable, assuming such Balloon Payment had not become due, after giving
effect to any modification of such Loan, and (b) interest on the Stated
Principal Balance of such Loan at the applicable Net Mortgage Rate (less the
Servicing Fee Rate).
"Authenticating Agent": Any agent of the Trustee appointed to act as
Authenticating Agent pursuant to Section 5.01.
"Available Distribution Amount": With respect to any Distribution Date,
an amount equal to the sum (without duplication) of:
(a) the aggregate amount received on the Loans (and any related REO
Properties) and on deposit in the Certificate Account and the Lower-Tier
Distribution Account as of the close of business on the Business Day preceding
the related Servicer Remittance Date (including funds released from the
Interest Reserve Account for distribution on such Distribution Date),
exclusive of the following amounts:
(i) all Monthly Payments collected but due on a Due Date after the
end of the related Due Period;
(ii) all Principal Prepayments, Balloon Payments, Liquidation
Proceeds or Insurance and Condemnation Proceeds, all amounts paid in
connection with Loan repurchases pursuant to Section 2.03(b), and all
other unscheduled recoveries received or deemed received after the
related Determination Date;
(iii) all amounts in the Certificate Account that are payable or
reimbursable to any Person from such account pursuant to clauses (ii)
through (xvii), inclusive, of Section 3.05(a);
(iv) all amounts in the Lower-Tier Distribution Account that are
payable or reimbursable to any Person from such account pursuant to
clauses (ii) through (iv), inclusive, of Section 3.05(b);
(v) all Prepayment Premiums, Yield Maintenance Charges and Yield
Protection Payments;
(vi) all amounts deposited in the Certificate Account or the Lower-
Tier Distribution Account, as the case may be, in error;
(vii) any net interest or net investment income on funds on deposit
in the Certificate Account, the Interest Reserve Account, any Cash
Collateral Account, any Lock-Box Account, any Reserve Account or any REO
Account or in Permitted Investments in which such funds may be invested;
(viii) with respect to those Loans that are Actual/360 Loans and any
Distribution Date relating to each Interest Accrual Period ending in each
February or in any January in a year which is not a leap year, an amount
equal to one day of interest on the Stated Principal Balance of such Loans
as of the Distribution Date in the month preceding the month in which such
Distribution Date occurs at the related Mortgage Rates to the extent such
amount is to be deposited in the Interest Reserve Account and held for
future distribution pursuant to Section 3.30; and
(ix) Excess Interest.
(b) if and to the extent not already included in clause (a) hereof,
the aggregate amount transferred with respect to the Loans from the REO
Account to the Certificate Account for such Distribution Date pursuant to
Section 3.16(c); and
(c) the aggregate amount of any P&I Advances made in respect
of the Loans by the Servicer or the Trustee, as applicable, for such
Distribution Date pursuant to Section 4.03 or 7.05 (which P&I Advances shall
not include any related Servicing Fees or Trustee Fees).
"Balloon Loan": Any Loan that by its original terms or any modification
entered into as of the Closing Date provides for an amortization schedule
extending beyond its Maturity Date.
"Balloon Payment": With respect to any Balloon Loan and any date of
determination, the scheduled payment of principal due on the Maturity Date of
such Loan (less principal included in the applicable amortization schedule or
scheduled Monthly Payment).
"Bankruptcy Code": The federal Bankruptcy Code, as amended from time to
time (Title 11 of the United States Code).
"Bankruptcy Event: As defined in Section 3.08(a)(v)(G).
"Base Interest Fraction": With respect to any Principal Prepayment on any
Loan and any of the Class A-1, Class A-2, Class B, Class C, Class D and Class
E Certificates, a fraction (not greater than 1) (a) whose numerator is the
amount, if any, by which (i) the Pass-Through Rate on such Class of
Certificates exceeds (ii) the Yield Rate (as provided by the Servicer) used in
calculating the Yield Maintenance Charge with respect to such Principal
Prepayment and (b) whose denominator is the amount, if any, by which the (i)
Mortgage Rate on such Loan exceeds (ii)the Yield Rate (as provided by the
Servicer) used in calculating the Yield Maintenance Charge with respect to
such Principal Prepayment; provided, however, that if such Yield Rate is
greater than or equal to the lesser of (x) the Mortgage Rate on such Loan and
(y) the Pass-Through Rate described in clause (a)(i) above, then the Base
Interest Fraction shall be zero.
"Book-Entry Certificate": Any Certificate registered in the name of the
Depository or its nominee.
"Borrower": With respect to any Loan, any obligor or obligors on any
related Note or Notes.
"Breach": As defined in Section 2.03(b).
"Business Day": Any day other than a Saturday, a Sunday or a day on which
banking institutions in the States of New York, Florida, North Carolina or
Texas are authorized or obligated by law or executive order to remain closed.
"Cash Collateral Account": With respect to any Loan that has a Lock-Box
Account, any account or accounts created pursuant to the related Mortgage,
Loan Agreement, Cash Collateral Account Agreement or other loan document, into
which account or accounts the Lock-Box Account monies are swept on a regular
basis for the benefit of the Trustee as successor to the applicable Mortgage
Loan Seller's interest in the Loans. Any Cash Collateral Account shall be
beneficially owned for federal income tax purposes by the Person who is
entitled to receive all reinvestment income or gain thereon in accordance with
the terms and provisions of the related Loan and Section 3.06, which Person
shall be taxed on all reinvestment income or gain thereon. The Servicer shall
be permitted to make withdrawals therefrom solely for deposit into the
Certificate Account. To the extent not inconsistent with the terms of the
related Loan, each such Cash Collateral Account shall be an Eligible Account.
"Cash Collateral Account Agreement": With respect to any Loan, the cash
collateral account agreement, if any, between the Originator and the related
Borrower, pursuant to which the related Cash Collateral Account, if any, may
have been established.
"Cedel": Cedel Bank, societe anonyme, a corporation organized under the
laws of the Duchy of Luxembourg.
"CERCLA": The Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended.
"Certificate": Any one of the Credit Suisse First Boston Mortgage
Securities Corp. Commercial Mortgage Pass-Through Certificates, Series
1998-C2, as executed and delivered by the Certificate Registrar and
authenticated and delivered hereunder by the Authenticating Agent.
"Certificate Account": The custodial account or accounts created and
maintained by the Servicer pursuant to Section 3.04(a) in the name of the
Trustee on behalf of the Certificateholders, into which the amounts set forth
in Section 3.04(a) shall be deposited directly, which account shall be
entitled "First Union National Bank, in trust for The Chase Manhattan Bank, as
Trustee for the benefit of Holders of Credit Suisse First Boston Mortgage
Securities Corp., Commercial Mortgage Pass-Through Certificates, Series
1998-C2, Certificate Account." Any such account or accounts shall be an
Eligible Account and shall be part of the Lower-Tier REMIC.
"Certificate Balance": With respect to any Class of Regular Certificates
(other than the Class A-X Certificates), (i) on or prior to the first
Distribution Date, an amount equal to the Original Certificate Balance of such
Class as specified in the Preliminary Statement hereto, and (ii) as of any
date of determination after the first Distribution Date, the Certificate
Balance of such Class on the Distribution Date immediately prior to such date
of determination (determined as adjusted pursuant to Section 1.02(iii)).
"Certificate Deferred Interest": For any Distribution Date with respect
to any Class of Certificates, the amount of Mortgage Deferred Interest
allocated to such Class pursuant to Section 4.06(a).
"Certificateholder" or "Holder": The Person in whose name a Certificate
is registered in the Certificate Register, provided, however, that (i) solely
for the purposes of giving any consent, approval or waiver pursuant to this
Agreement, any Certificate registered in the name of the Servicer, the Special
Servicer, the Depositor or any Affiliate of any of them shall be deemed not to
be outstanding, and the Voting Rights to which it is entitled shall not be
taken into account in determining whether the requisite percentage of Voting
Rights necessary to effect any such consent, approval or waiver has been
obtained and (ii) such restrictions shall not apply to the exercise of the
Special Servicer's rights as a member of the Controlling Class. The Trustee
shall be entitled to request and conclusively rely upon a certificate of the
Servicer, the Special Servicer or the Depositor in determining whether a
Certificate is registered in the name of an Affiliate of such Person. All
references herein to " Holders" or "Certificateholders" shall reflect the
rights of Certificate Owners as they may indirectly exercise such rights
through the Depository and the Depository Participants, except as otherwise
specified herein; provided, however, that the parties hereto shall be required
to recognize as a "Holder" or "Certificateholder" only the Person in whose
name a Certificate is registered in the Certificate Register.
"Certificate Owner": With respect to a Book-Entry Certificate, the Person
who is the beneficial owner of such Certificate as reflected on the books of
the Depository or on the books of a Depository Participant or on the books of
an indirect participating brokerage firm for which a Depository Participant
acts as agent.
"Certificate Principal Balance": With respect to any date of
determination and a Regular Certificate or Certificates of any Class (other
than the Class A-X Certificates), the product of (i) the Percentage Interest
represented by such Regular Certificate or Certificates and (ii)the
Certificate Balance of such Class as of such date.
"Certificate Register" and "Certificate Registrar": The register
maintained and the registrar appointed pursuant to Section 5.02.
"Change Order": As defined in Section 3.25(h).
"Class": With respect to any Certificates or Uncertificated
Intermediate-Tier or Lower-Tier Interests, all of the Certificates or
Uncertificated Intermediate-Tier or Lower-Tier Interests bearing the same
alphabetical (and, if applicable, numerical) Class designation.
"Class A Certificate": Any Class A-1, or Class A-2 Certificate.
"Class A-1 Certificate": A Certificate designated as "Class A-1" on the
face thereof, substantially in the form of Exhibit A-1 hereto.
"Class A-1 Pass-Through Rate": 5.96% per annum.
"Class A-2 Certificate": A Certificate designated as "Class A-2" on the
face thereof, substantially in the form of Exhibit A-1 hereto.
"Class A-2 Pass-Through Rate": 6.30% per annum.
"Class A-X Certificate": A Certificate designated as "Class A-X" on the
face thereof, in the form of Exhibit A-2 hereto.
"Class A-X Pass-Through Rate": As to any Distribution Date, the per annum
rate, expressed as a percentage, obtained by dividing (i) the sum of the
products of (a) the principal balance of each Class of Uncertificated
Intermediate-Tier Interests immediately prior to such Distribution Date and
(b) the related Component Rate for such Distribution Date by (ii) the sum of
all such principal balances.
"Class A-X Yield Protection Payment Amount": As defined in the definition
of Yield Protection Payment.
"Class B Certificate": A Certificate designated as "Class B" on the face
thereof, in the form of Exhibit A-3 hereto.
"Class B Pass-Through Rate": 6.59% per annum.
"Class C Certificate": A Certificate designated as "Class C" on the face
thereof, in the form of Exhibit A-3 hereto.
"Class C Pass-Through Rate": 6.84% per annum.
"Class D Certificate": A Certificate designated as "Class D" on the face
thereof, in the form of Exhibit A-3 hereto.
"Class D Pass-Through Rate": 7.13% per annum.
"Class E Certificate": A Certificate designated as "Class E" on the face
thereof, in the form of Exhibit A-3 hereto.
"Class E Pass-Through Rate": 7.13% per annum.
"Class F Book-Entry Certificate": A Class F Certificate identified by
CUSIP No. 225YOA JT6. The initial aggregate Certificate Principal Balance of
the Class F Book-Entry Certificate is $105,600,000.
"Class F Certificate": A Certificate designated as "Class F" on the face
thereof, in the form of Exhibit A-4 hereto.
"Class F Pass-Through Rate": As to any Distribution, a per annum rate
equal to the lesser of (i)6.75% and (ii)the Weighted Average Net Mortgage
Rate for such Distribution Date.
"Class G Book-Entry Certificate": A Class G Certificate identified by
CUSIP No. 22540AJU3. The initial aggregate Certificate Principal Balance of
the Class G, Book-Entry Certificate is $19,200,000.
"Class G Certificate": A Certificate designated as "Class G" on the face
thereof, in the form of Exhibit A-4 hereto.
"Class G Pass-Through Rate": As to any Distribution, a per annum rate
equal to the lesser of (i)6.75% and (ii)the Weighted Average Net Mortgage
Rate for such Distribution Date.
"Class H Certificate": A Certificate designated as "Class H" on the face
thereof, in the form of Exhibit A-6 hereto.
"Class H Pass-Through Rate": As to any Distribution, a per annum rate
equal to the lesser of (i) 6.75% and (ii) the Weighted Average Net Mortgage
Rate for such Distribution Date.
"Class I Certificate": A Certificate designated as "Class I" on the face
thereof, in the form of Exhibit A-6 hereto.
"Class I Pass-Through Rate": As to any Distribution, a per annum rate
equal to the lesser of (i) 6.75% and (ii) the Weighted Average Net Mortgage
Rate for such Distribution Date.
"Class J Certificate": A Certificate designated as "Class J" on the face
thereof, in the form of Exhibit A-6 hereto.
"Class J Pass-Through Rate": As to any Distribution, a per annum rate
equal to the lesser of (i) 6.75% and (ii) the Weighted Average Net Mortgage
Rate for such Distribution Date.
"Class LR Certificate": A Certificate designated as "Class LR" on the
face thereof, in the form of Exhibit A-8 hereto representing beneficial
ownership of the Class LR-1 Interest and the Class LR-2 Interest.
"Class MA-1 Uncertificated Interest": A regular interest in the
Intermediate-Tier REMIC that is held as an asset of the Upper-Tier REMIC and
having the Original Intermediate-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class MA-2 Uncertificated Interest": A regular interest in the
Intermediate-Tier REMIC that is held as an asset of the Upper-Tier REMIC and
having the Original Intermediate-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class MB Uncertificated Interest": A regular interest in the
Intermediate-Tier REMIC that is held as an asset of the Upper-Tier REMIC and
having the Original Intermediate-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class MC Uncertificated Interest": A regular interest in the
Intermediate-Tier REMIC that is held as an asset of the Upper-Tier REMIC and
having the Original Intermediate-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class MD Uncertificated Interest": A regular interest in the
Intermediate-Tier REMIC that is held as an asset of the Upper-Tier REMIC and
having the Original Intermediate-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class ME Uncertificated Interest": A regular interest in the
Intermediate-Tier REMIC that is held as an asset of the Upper-Tier REMIC and
having the Original Intermediate-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class MF Uncertificated Interest": A regular interest in the
Intermediate-Tier REMIC that is held as an asset of the Upper-Tier REMIC and
having the Original Intermediate-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class MG Uncertificated Interest": A regular interest in the
Intermediate-Tier REMIC that is held as an asset of the Upper-Tier REMIC and
having the Original Intermediate-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class MH Uncertificated Interest": A regular interest in the
Intermediate-Tier REMIC that is held as an asset of the Upper-Tier REMIC and
having the Original Intermediate-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class MI Uncertificated Interest": A regular interest in the
Intermediate-Tier REMIC that is held as an asset of the Upper-Tier REMIC and
having the Original Intermediate-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class MJ Uncertificated Interest": A regular interest in the
Intermediate-Tier REMIC that is held as an asset of the Upper-Tier REMIC and
having the Original Intermediate-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class R Certificate": A Certificate designated as "Class R" on the face
thereof, in the form of Exhibit A-8 hereto.
"Class V Certificate": A Certificate designated as "Class V" on the face
thereof, in the form of Exhibit A-7 hereto. The Class V Certificates have no
Pass-Through Rate, Certificate Balance or notional balance.
"Closing Date": November 24, 1998.
"Code": The Internal Revenue Code of 1986, as amended from time to time,
and applicable final or temporary regulations of the U.S. Department of the
Treasury issued pursuant thereto.
"Collateral Support Deficit": As defined in Section 4.04.
"Commission": The Securities and Exchange Commission.
"Comparative Financial Status Report": A report prepared by the Servicer
(combining reports prepared by the Servicer and the Special Servicer)
containing substantially the information described in Exhibit I-1 attached
hereto, setting forth, among other things, the occupancy, revenue, net
operating income before capital items, and debt service coverage for each Loan
and related Mortgaged Property based on the most current financial information
received as of the Determination Date immediately preceding the preparation of
such report for each of the following three periods (to the extent such
information is available): (i) the most current available year to date, (ii)
the previous two full fiscal years and (iii) the "base year" (representing the
original analysis of information used as of the Cut-off Date). For the
purposes of the Servicer's production of any such report that is required to
state information for any period prior to the Cut-off Date, the Servicer may
conclusively rely (without independent verification), absent manifest error,
on information provided to it by the related Mortgage Loan Seller.
"Component Rate": As to each of the Class A-X Components, the rate set
forth below with respect thereto:
Class MA-1 Component: The amount, if any, by which the Weighted
Average Net Mortgage Rate for such Distribution Date exceeds the Class
A-1 Pass-Through Rate.
Class MA-2 Component: The amount, if any, by which the Weighted
Average Net Mortgage Rate for such Distribution Date exceeds the Class
A-2 Pass-Through Rate.
Class MB Component: The amount, if any, by which the Weighted
Average Net Mortgage Rate for such Distribution Date exceeds the Class B
Pass-Through Rate.
Class MC Component: The amount, if any, by which the Weighted
Average Net Mortgage Rate for such Distribution Date exceeds the Class C
Pass-Through Rate.
Class MD Component: The amount, if any, by which the Weighted
Average Net Mortgage Rate for such Distribution Date exceeds the Class D
Pass-Through Rate.
Class ME Component: The amount, if any, by which the Weighted
Average Net Mortgage Rate for such Distribution Date exceeds the Class E
Pass-Through Rate.
Class MF Component: The amount, if any, by which the Weighted
Average Net Mortgage Rate for such Distribution Date exceeds the Class F
Pass-Through Rate for such Distribution Date.
Class MG Component: The amount, if any, by which the Weighted
Average Net Mortgage Rate for such Distribution Date exceeds the Class G
Pass-Through Rate for such Distribution Date.
Class MH Component: The amount, if any, by which the Weighted
Average Net Mortgage Rate for such Distribution Date exceeds the Class H
Pass-Through Rate for such Distribution Date.
Class MI Component: The amount, if any, by which the Weighted
Average Net Mortgage Rate for such Distribution Date exceeds the Class I
Pass-Through Rate for such Distribution Date.
Class MJ Component: The amount, if any, by which the Weighted
Average Net Mortgage Rate for such Distribution Date exceeds the Class J
Pass-Through Rate for such Distribution Date.
"Construction Borrower": With respect to any Construction Loan, the
obligor on the related note.
"Construction Budget": With respect to any Construction Loan, that
portion of the budget for the construction of the CVS Improvements on the
related Mortgaged Property that is allocated to the construction of the CVS
Store to be built as part of such CVS Improvements and specifically not
including any land acquisition costs, site improvement costs, Loan closing
costs, soft costs or the Construction Loan Interest Reserve.
"Construction Developer": With respect to any Construction Loan, the
developer chosen by the related Construction Borrower or by CVS to develop and
construct CVS Improvements on the Mortgaged Property securing such
Construction Loan.
"Construction Funding Sub-Account": With respect to any Construction
Loan, the sub-account created pursuant to Section 3.25(q).
"Construction Lender": With respect to any Construction Loan, the
original lender making such Construction Loan to a Construction Borrower or,
if applicable, the Trustee, on behalf of the Trust Fund, as assignee of such
lenders interest in such Construction Loan.
"Construction Loan": Any one of Loan Nos. 122, 126, 128, 132, 135, 144,
145, 147, 148, 151, 154, 155, 158, 172, 177, 189 or 191.
"Construction Loan Excess Funds": As defined in Section 3.25(k).
"Construction Loan Interest Reserve": With respect to any Construction
Loan, the funds designated by the Construction Lender for allocation to the
related Construction Loan Interest Reserve Sub-Account and intended for the
purpose of funding the required debt service set forth in the related CSFB
Construction Loan Agreement and Note for the period commencing with the
closing of such Construction Loan and ending on (and including) the Due Date
immediately succeeding the related Date of Rent Commencement.
"Construction Loan Interest Reserve Sub-Account": With respect to any
Construction Loan, the sub-account created pursuant to Section 3.25(p).
"Construction Loan Lease": With respect to any Construction Loan, the
related "Lease" (as defined in the related CSFB Construction Loan Agreement).
"Construction Loan Phase": With respect to any Construction Loan, the
period between (a) the closing of such Construction Loan and (b) the earlier
of (i) the Substantial Completion of construction of the CVS Improvements on
the Mortgaged Property securing such Construction Loan and (ii) the related
Date of Rent Commencement.
"Construction Loan Processing Fees": With respect to any Construction
Loan, all commercially reasonable amounts received from the Construction
Borrower for processing a loan modification, extension, assumption, demand,
beneficiary statement, UCC filings, insurance claim or other loan service
transaction, but not including any prepayment premiums.
"Construction Loan Servicing Account": The account created and maintained
by the Servicer pursuant to Section 3.25(l).
"Construction Loan Servicing Fee": With respect to the Permanent Loan
Phase of each Construction Loan, an annual fee of $750.00, payable monthly at
$62.50.
"Construction Loan Status Report": Any of the reports required to be
prepared and/or delivered by the Servicer pursuant to Section 3.25(t).
"Controlling Class": As of any date of determination, the most
subordinate Class of Regular Certificates then outstanding that has a
Certificate Balance at least equal to 25% of the initial Certificate Balance
of such Class (or, if no such Class exists, the most subordinate Class then
outstanding). For purposes of determining, at any time, which Class is the
Controlling Class, the Certificate Balance of each Class shall be deemed to be
reduced by the amount allocated to such Class of any Appraisal Reductions
relating to Loans as to which Liquidation Proceeds or other final payment has
not yet been received. As of the Closing Date, the Controlling Class shall be
the Class J Certificates.
"Controlling Class Certificateholders": Each Holder (or Certificate
Owner, if applicable) of a Certificate of the Controlling Class as certified
by the Certificate Registrar to the Trustee from time to time.
"Corporate Trust Office": The principal corporate trust office of the
Trustee at which at any particular time its corporate trust business with
respect to this Agreement shall be administered, which office at the date of
the execution of this Agreement is located at 450 West 33rd Street, 14th
Floor, New York, New York 10001, Attention: Structured Finance Services CMBS.
"Corrected Loan": Any Specially Serviced Loan that has become current and
remained current
(i) for three consecutive Monthly Payments, in the case of any Loan
other than the United Artists Loan, or
(ii) through the Due Date following the date on which it became current,
in the case of the United Artists Loan
(for such purposes taking into account any modification or amendment of such
Loan) and as to which Loan the Special Servicer has returned servicing to the
Servicer pursuant to Section 3.21(a).
"Credit File": Any documents, other than documents required to be part of
the related Mortgage File, in the possession of the Servicer and relating to
the origination and servicing of any Loan.
"Crossed Loan": Any Loan, which is cross-defaulted and cross-
collateralized with any other Loan.
"CSFB Construction Loan Agreement": With respect to each Construction
Loan, that certain loan agreement by and between the related Mortgage Loan
Seller and the related Construction Borrower, pursuant to which such
Construction Loan was made.
"CSFB Mortgage Loan Seller": Credit Suisse First Boston Mortgage Capital
LLC, a Delaware limited liability company and its successors in interest.
"Custodian": A Person who is at any time appointed by the Trustee
pursuant to Section 8.11 as a document custodian for the Mortgage Files, which
Person shall not be the Depositor or either Mortgage Loan Seller, or an
Affiliate of either of them.
"Cut-off Date": November 11, 1998.
"Cut-off Date Principal Balance": With respect to any Loan, the
outstanding principal balance of such Loan as of the Cut-off Date, after
application of all payments of principal due on or before such date, whether
or not received.
"CVS": CVS Corporation, a Delaware corporation, and its successors and
assigns.
"CVS Improvements": The building and improvements constructed on a
Mortgaged Property securing a Construction Loan.
"CVS Interim Servicing Agreement": The interim servicing agreement dated
as of July 17, 1997, between Credit Suisse First Boston Mortgage Capital LLC
and GE Capital Loan Services, Inc. (formerly known as GE Capital Asset
Management Corporation), as interim servicer.
"CVS Project Manager": With respect to any Construction Loan, the person
designated by CVS as having approval authority for the Project Plans and
Specifications, budgets, Draw Requests and Change Orders relating to such
Construction Loan.
"CVS Store": With respect to any Construction Loan, the drug store leased
by CVS or any of its affiliates and constructed on the related Mortgaged
Property.
"Date of Rent Commencement": With respect to any Construction Loan, the
date identified as such in the related Construction Loan Lease.
"Debt Service Coverage Ratio": With respect to any Loan for any
twelve-month period covered by an annual operating statement for the related
Mortgaged Property, the ratio of (i) Net Operating Income produced by the
related Mortgaged Property during such period to (ii) the aggregate amount of
Monthly Payments (other than any Balloon Payment) due under such Loan during
such period; provided, however, that with respect to the Loans that initially
pay interest only, the related Monthly Payment will be calculated (for
purposes of this definition only) to include principal (based upon a 25-year
amortization schedule) and interest payments from origination.
"Default Interest": With respect to any Loan, interest accrued on such
Loan at the excess of (i) the related Default Rate over (ii) the sum of the
related Mortgage Rate and, if applicable, the related Excess Rate.
"Default Rate": With respect to each Loan, the per annum rate at which
interest accrues on such Loan following any event of default on such Loan,
including a default in the payment of a Monthly Payment or a Balloon Payment,
as such rate is set forth on the Mortgage Loan Schedule.
"Defaulted Loan": A Loan that is at least sixty days delinquent in
respect of its Monthly Payments or more than thirty days delinquent in respect
of its Balloon Payment, if any, in each case without giving effect to any
grace period permitted by the related Mortgage or Note and without regard to
any acceleration of payments under the related Mortgage and Note; provided,
however, that no Monthly Payment (other than a Balloon Payment) shall be
deemed delinquent if less than ten dollars of all amounts due and payable on
such Loan has not been received.
"Defaulting Party": As defined in Section 7.01(b).
"Defect": As defined in Section 2.02(e).
"Deficient Valuation": With respect to any Loan, a valuation by a court
of competent jurisdiction of the Mortgaged Property in an amount less than the
then outstanding principal balance of the Loan, which valuation results from a
proceeding initiated under the Bankruptcy Code.
"Definitive Certificate": A Certificate issued in registered, definitive
physical form.
"Delinquent Loan Status Report": A report prepared by the Servicer
(combining reports prepared by the Servicer and the Special Servicer)
containing substantially the information described in Exhibit I-2 attached
hereto, setting forth, among other things, a list of those Loans that, as of
the close of business on the Determination Date immediately preceding the
preparation of such report, were delinquent 30 to 59 days, delinquent 60 to 89
days, delinquent 90 days or more, or current but Specially Serviced Loans or
that were in foreclosure but were not REO Loans. The Servicer shall not
include on the Delinquent Loan Status Report any Loan that has not been
delinquent at least one month after the related Due Date unless such Loan is a
Specially Serviced Loan.
"Denomination": As defined in Section 5.01(a).
"Depositor": Credit Suisse First Boston Mortgage Securities Corp., a
Delaware corporation, or its successor in interest.
"Depository": The Depository Trust Company, or any successor Depository
hereafter named. The nominee of the initial Depository for purposes of
registering those Certificates that are to be Book-Entry Certificates, is Cede
& Co. The Depository shall at all times be a "clearing corporation" as defined
in Section 8-102(3) of the Uniform Commercial Code of the State of New York
and a "clearing agency" registered pursuant to the provisions of Section 17A
of the Exchange Act.
"Depository Participant": A broker, dealer, bank or other financial
institution or other Person for whom from time to time the Depository effects
book-entry transfers and pledges of securities deposited with the Depository.
"Depository Rules": As defined in Section 5.02(b).
"Determination Date": With respect to any Distribution Date, the close of
business on the 11th day of the month in which such Distribution Date occurs,
or if such 11th day is not a Business Day, the Business Day immediately
following such 11th day.
"Directing Certificateholder": The Controlling Class Certificateholder
selected by the Holders of more than 50% of the Percentage Interests in the
Controlling Class, by Certificate Balance, as certified by the Certificate
Registrar from time to time; provided, however, that until a Directing
Certificateholder is so selected or after receipt of a notice from the Holders
of more than 50% of the Percentage Interests in the Controlling Class that a
Directing Certificateholder is no longer designated, the Controlling Class
Certificateholder that beneficially owns the largest aggregate Certificate
Balance of the Controlling Class shall be the Directing Certificateholder.
"Directly Operate": With respect to any REO Property, the furnishing or
rendering of services to the tenants thereof that are not (within the meaning
of Treasury Regulation Section 1.512(b)-1(c)(5)) customarily provided to
tenants in connection with the rental of space for occupancy, the management
or operation of such REO Property, the holding of such REO Property primarily
for sale to customers in the ordinary course of a trade or business, the
performance of any construction work thereon or any use of such REO Property
in a trade or business conducted by the Trust Fund, in each case other than
through an Independent Contractor; provided, however, that the Trustee (or the
Servicer 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 Servicer 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 (of the type that would be
deductible under Section 162 of the Code) or capital expenditures with respect
to such REO Property.
"Discount Rate": The rate that, when compounded monthly, is equivalent to
the Treasury Rate when compounded semi-annually, plus, if required under the
related Loan, the number of basis points set forth in the related Note to be
added to the discount rate calculable pursuant to such Note when calculating
the related yield maintenance charge.
"Disqualified Organization": Any of (i) the United States, any State or
political subdivision thereof, any possession of the United States or any
agency or instrumentality of any of the foregoing (other than an
instrumentality that is a corporation if all of its activities are subject to
tax and, except for FHLMC, a majority of its board of directors is not
selected by such governmental unit), (ii) a foreign government, any
international organization or any agency or instrumentality of any of the
foregoing, (iii) any organization (other than certain farmers' cooperatives
described in Section 521 of the Code) that is exempt from the tax imposed by
Chapter 1 of the Code (including the tax imposed by Section 511 of the Code on
unrelated business taxable income), (iv) rural electric and telephone
cooperatives described in Section 1381(a)(2)(C) of the Code, (v) an electing
large partnership under Code Section 775 and (vi) any other Person so
designated by the Servicer or the Trustee based upon an Opinion of Counsel
that the holding of an Ownership Interest in a Residual Certificate by such
Person may cause either the Upper-Tier REMIC or the Lower-Tier REMIC to fail
to qualify as a REMIC 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.
"Distribution Accounts": Collectively, the Upper-Tier Distribution
Account, the Intermediate-Tier Distribution Account and the Lower-Tier
Distribution Account.
"Distribution Date": With respect to any month, the fourth Business Day
after the Determination Date in such month, commencing in December 1998.
"Donatelli Loan Special Prepayment": Any partial prepayment under Loan
No. 14 that may result from a reversal on appeal of the trial court ruling
concerning the validity of the transfer to the related Borrower of one of the
properties securing such Loan, as described in the Prospectus Supplement.
"Draw Request": A request by or on behalf of a Construction Borrower for
funds pursuant to Section 3.25(e).
"Due Date": With respect to (i) any Loan on or prior to its Maturity
Date, the day of the month set forth in the related Note on which each Monthly
Payment thereon is scheduled to be first due (without giving effect to any
grace period with respect to late Monthly Payments), (ii) any Loan after the
Maturity Date therefor, the day of the month set forth in the related Note on
which each Monthly Payment on such Loan had been scheduled to be first due
(without giving effect to any grace period) and (iii) any REO Loan, the day of
the month set forth in the related Note on which each Monthly Payment on the
related Loan had been scheduled to be first due (without giving effect to any
grace period).
"Due Period": With respect to each Distribution Date, the period
beginning on the day following the Determination Date in the month immediately
preceding the month in which such Distribution Date occurs and ending on the
Determination Date of the month in which such Distribution Date occurs.
"Eligible Account": Either (i) an account or accounts maintained with a
federal or state chartered depository institution or trust company (including
the Trustee) the long-term unsecured debt obligations of which are rated at
least "AA-" by Fitch (if rated by Fitch (or, if not rated by Fitch, then
having the indicated ratings from Moody's)), and "Aa3," by Moody's, if the
deposits are to be held in such account for more than 30 days or the
short-term debt obligations of which have a short-term rating of not less than
"P-1" by Moody's and "F1+" from Fitch (if rated by Fitch (or, if not rated by
Fitch, then having the indicated ratings from Moody's)) if the deposits are to
be held in such account for 30 days or less, or such other account or accounts
with respect to which each of the Rating Agencies shall have confirmed in
writing that the then current rating assigned to any of the Certificates that
are currently being rated by such Rating Agency will not be qualified,
downgraded or withdrawn by reason thereof or (ii) a segregated trust account
or accounts maintained with the corporate trust department of a federal- or
state-chartered depository institution or trust company (including the
Trustee) that, in either case, has a combined capital and surplus of at least
$50,000,000 and has corporate trust powers, acting in its fiduciary capacity,
provided that any state-chartered depository institution or trust company is
subject to regulation regarding fiduciary funds substantially similar to 12
C.F.R. ss. 9.10(b) or such other account or accounts with respect to which
each of the Rating Agencies shall have confirmed in writing that the then
current rating assigned to any of the Certificates that are currently being
rated by such Rating Agency will not be qualified, downgraded or withdrawn by
reason thereof; provided, however, that accounts held at Bankers Trust Company
shall be Eligible Accounts for so long as there is no downgrade, qualification
or withdrawal of the rating on the long-term unsecured debt obligations of
such institution in effect as of the Cut-off Date. Eligible Accounts may bear
interest. No Eligible Account shall be evidenced by a certificate of deposit,
passbook or other similar instrument.
"Eligible Investor": (i) A Qualified Institutional Buyer that is
purchasing for its own account or for the account of a Qualified Institutional
Buyer to whom notice is given that the offer, sale or transfer is being made
in reliance on Rule 144A or (ii) a Person which is not a "U.S. Person" as
defined in Regulation S under the Securities Act that is purchasing for its
own account or for the account of a Person which is not a "U.S. Person".
"Environmental Assessment": A "Phase I assessment" as described in, and
meeting the criteria of, (i) Chapter 5 of the FNMA Multifamily Guide or any
successor provisions covering the same subject matter, in the case of
Specially Serviced Loan as to which the related Mortgaged Property is
multifamily property or (ii) the American Society for Testing and Materials in
the case of Specially Serviced Loan as to which the related Mortgaged Property
is not multifamily property.
"ERISA": The Employee Retirement Income Security Act of 1974, as amended.
"ERISA Prohibited Holder": As defined in Section 5.02(d).
"Escrow Payment": Any payment received by the Servicer for the account of
any Mortgagor for application toward the payment of real estate taxes,
assessments, Insurance Policy premiums and similar items in respect of the
related Mortgaged Property, including amounts for deposit to any reserve
account.
"Euroclear": The Euroclear System.
"Event of Default": One or more of the events described in Section
7.01(a).
"Excess Interest": With respect to each of the ARD Loans, interest
accrued on such Loan and allocable to the Excess Rate. With respect to the
Town & Country Loan, the T&C Excess Interest. The Excess Interest is an asset
of the Trust Fund, but shall not be an asset of any REMIC formed hereunder.
"Excess Interest Distribution Account": The trust account or accounts
created and maintained as a separate trust account or accounts by the Trustee
pursuant to Section 3.04(c), which shall be entitled "The Chase Manhattan
Bank, as Trustee, in trust for Holders of Credit Suisse First Boston Mortgage
Securities Corp., Commercial Mortgage Pass-Through Certificates, Series
1998-C2, Excess Interest Distribution Account" and which shall be an Eligible
Account. The Excess Interest Distribution Account shall not be an asset of any
REMIC formed hereunder.
"Excess Rate": With respect to each ARD Loan after the related
Anticipated Repayment Date, the excess of (i) the applicable Revised Rate over
(ii) the applicable Mortgage Rate, each as set forth in the Mortgage Loan
Schedule. With respect to the Town & Country Loan after the related Maturity
Date, a rate of 2% per annum.
"Exchange Act": The Securities Exchange Act of 1934, as amended from time
to time.
"Exchange Act Report": A monthly Statement to Certificateholders,
Comparative Financial Status Report, Delinquent Loan Status Report, Historical
Loss Estimate Report, Historical Loan Modification Report, REO Status Report,
Operating Statement Analysis, Servicer Watch List, or report pursuant to
Section 4.02(b) or Annual Compliance Report to be filed with the Commission,
under cover of the related form required by the Exchange Act.
"Extraordinary Expenses": As defined in Section 3.31(k).
"FDIC": Federal Deposit Insurance Corporation or any successor.
"FHLMC": Federal Home Loan Mortgage Corporation or any successor.
"Final Disbursement": With respect to any Construction Loan, the final
disbursement of funds for the construction of the related CVS Improvements
pursuant to the Final Draw Request for such Construction Loan.
"Final Draw Request": With respect to any Construction Loan, the Draw
Request made in conjunction with the Substantial Completion of the related CVS
Improvements.
"Final Recovery Determination": A determination by the Special Servicer
with respect to any Defaulted Loan or REO Property (other than a Loan or REO
Property, as the case may be, that was purchased (i) by the CSFB Mortgage Loan
Seller pursuant to Section 7 of the related Mortgage Loan Purchase Agreement,
(ii) by the Servicer or the Special Servicer pursuant to Section 3.18(b),
(iii) by the Holder of 100% of the Percentage Interests in the Class V
Certificates, pursuant to Section 9.03 or (iv) by the CSFB Mortgage Loan
Seller, the Special Servicer, the Holders of more than 50% of the Percentage
Interests in the Controlling Class, or the Servicer pursuant to Section 9.01),
that there has been a recovery of all Insurance and Condemnation Proceeds,
Liquidation Proceeds and other payments or recoveries that, in the Special
Servicer's reasonable good faith judgment, exercised without regard to any
obligation of the Special Servicer to make payments from its own funds
pursuant to Section 3.07(b), will ultimately be recoverable.
"Fitch": Fitch IBCA, Inc., and its successors in interest.
"FNMA": Federal National Mortgage Association or any successor thereto.
"Group 1 Available Distribution Amount": With respect to any Distribution
Date, that portion of the Available Distribution Amount relating to the Loans
in Loan Group 1.
"Group 2 Available Distribution Amount": With respect to any Distribution
Date, that portion of the Available Distribution Amount relating to the Loans
in Loan Group 2.
"GECLS Sub-Servicing Agreement": The Sub-Servicing Agreement dated as of
November 11, 1998 between the Servicer and GE Capital Loan Services, Inc.
"Hazardous Materials": Any dangerous, toxic or hazardous pollutants,
chemicals, wastes or substances, including, without limitation, those so
identified pursuant to CERCLA or any other federal, state or local
environmental related laws and regulations, and specifically including,
without limitation, asbestos and asbestos-containing materials,
polychlorinated biphenyls, radon gas, petroleum and petroleum products, urea
formaldehyde and any substances classified as being "in inventory," "usable
work in process" or similar classification which would, if classified as
unusable, be included in the foregoing definition.
"Historical Loan Modification Report": With respect to each Servicer
Remittance Date, a report prepared by the Servicer (combining reports prepared
by the Servicer and the Special Servicer) containing all or substantially all
the content described in Exhibit I-3 attached hereto and setting forth, among
other things, those Loans which, as of the close of business on the
Determination Date immediately preceding the preparation of such report, have
been modified pursuant to this Agreement (i) during the related Due Period and
(ii) since the Cut-off Date, showing the original and the revised terms
thereof.
"Historical Loss Estimate Report": With respect to each Servicer
Remittance Date, a report prepared by the Servicer (combining reports prepared
by the Servicer and the Special Servicer) containing substantially the
information described in Exhibit I-4 attached hereto and setting forth, among
other things, as of the close of business on the Determination Date
immediately preceding the preparation of such report, (i) the aggregate amount
of Liquidation Proceeds collected for the related Due Period and, separately
stated, historically and (ii) the amount of realized losses occurring on the
Loans during such Due Period, set forth on a Loan-by-Loan basis.
"Independent": When used with respect to any specified Person, any such
Person that (i) is in fact independent of the Depositor, the Servicer, the
Special Servicer, the Trustee and any and all Affiliates thereof, (ii) does
not have any material direct financial interest in or any material indirect
financial interest in any of the Depositor, the Servicer, the Special Servicer
or any Affiliate thereof and (iii) is not connected with the Depositor, the
Servicer, the Special Servicer or any Affiliate thereof as an officer,
employee, promoter, underwriter, trustee, partner, director or Person
performing similar functions; provided, however, that a Person shall not fail
to be Independent of the Depositor, the Servicer, the Special Servicer, the
Trustee or any Affiliate thereof merely because such Person is the beneficial
owner of 1% or less of any Class of debt or equity securities issued by the
Depositor, the Servicer, the Special Servicer, the Trustee or any Affiliate
thereof, as the case may be.
"Independent Contractor": Either (i) any Person that would be an
"independent contractor" with respect to the Trust Fund within the meaning of
Section 856(d)(3) of the Code if the Trust Fund were a real estate investment
trust (except that the ownership test set forth in that Section shall be
considered to be met by any Person that owns, directly or indirectly, 35% or
more of any Class of Certificates, or such other interest in any Class of
Certificates as is set forth in an Opinion of Counsel, which shall be at no
expense to the Trustee, the Servicer or the Trust, delivered to the Trustee
and the Servicer), so long as the Trust Fund does not receive or derive any
income from such Person and provided that the relationship between such Person
and the Trust Fund is at arm's length, all within the meaning of Treasury
Regulation Section 1.856-4(b)(5) (except that the Servicer or the Special
Servicer shall not be considered to be an Independent Contractor under the
definition in this clause (i) unless an Opinion of Counsel (at the expense of
the party seeking to be deemed an Independent Contractor) has been delivered
to the Trustee to that effect or (ii) any other Person (including the Servicer
and the Special Servicer) upon receipt by the Trustee and the Servicer of an
Opinion of Counsel (at the expense of the party seeking to be deemed an
Independent Contractor), to the effect that the taking of any action in
respect of any REO Property by such Person, subject to any conditions therein
specified, that is otherwise herein contemplated to be taken by an Independent
Contractor will not cause such REO Property to cease to qualify as
"foreclosure property" within the meaning of Section 860G(a)(8) of the Code or
cause any income realized in respect of such REO Property to fail to qualify
as Rents from Real Property (provided that such income would otherwise so
qualify).
"Ineligible Class V Owner": Any Borrower, or any entity that owns an
ownership interest in a Borrower, other than, in each case, the CSFB Mortgage
Loan Seller or an affiliate thereof.
"Initial Disbursement Advance": With respect to each Construction Loan,
the disbursement from the Construction Lender, at the closing of such
Construction Loan, of funds designated for allocation to the related
Construction Loan Interest Reserve Sub-Account and the related Construction
Funding Sub-Account, such funds to be held on behalf of the related Borrower.
"Initial Purchaser": Credit Suisse First Boston Corporation, as Initial
Purchaser of Private Certificates.
"Insurance Policy": With respect to any Loan, any hazard insurance
policy, flood insurance policy, title policy or other insurance policy that is
maintained from time to time in respect of such Loan or the related Mortgaged
Property.
"Insurance and Condemnation Proceeds": All proceeds paid under any
Insurance Policy or in connection with the full or partial condemnation of a
Mortgaged Property, in either case, to the extent such proceeds are not
applied to the restoration of the related Mortgaged Property or released to
the Mortgagor, in either case, in accordance with the Servicing Standard.
"Interest Accrual Period": With respect to any Class of Regular
Certificates or Uncertificated Lower-Tier Interests and any Distribution Date,
the period commencing on the 11th day of the calendar month preceding the
month in which such Distribution Date occurs and ending on the 10th day of the
month in which such Distribution Date occurs. Each Interest Accrual Period
shall be deemed for purposes of this definition to consist of 30 days.
"Interest Reserve Account": The account created and maintained by the
Servicer pursuant to Section 3.30, which shall be entitled "First Union
National Bank, as Servicer, for the benefit of The Chase Manhattan Bank, as
Trustee, in trust for Holders of Credit Suisse First Boston Mortgage
Securities Corp., Commercial Mortgage Pass-Through Certificates, Series
1998-C2, Interest Reserve Account" and which shall be an Eligible Account.
"Interest Reserve Remittance Amount": With respect to any Servicer
Remittance Date and any Construction Loan for which such Servicer Remittance
Date is prior to the second Due Date following the Date of Rent Commencement
under the related Construction Loan Lease, the lesser of (i) the amount on
deposit in the related Construction Loan Interest Reserve Sub-Account on the
related Determination Date and (ii) the amount required by the related Loan
Documents to be applied during the related Due Period as payment on such
Construction Loan.
"Interest Shortfall Amount": As to any Distribution Date and any Class of
Regular Certificates, the amount, if any, by which the amount distributed on
such Class on such Distribution Date in respect of interest is less than the
related Optimal Interest Distribution Amount.
"Interested Person": The Depositor, the Servicer, the Special Servicer,
any Independent Contractor engaged by the Special Servicer, any Holder of a
Certificate or any Affiliate of any such Person.
"Intermediate-Tier Distribution Account": The segregated account or
accounts created and maintained by the Trustee, pursuant to Section 3.04(b),
in trust for the Certificateholders, which shall be entitled "The Chase
Manhattan Bank, as Trustee, in trust for the registered Holders of Credit
Suisse First Boston Mortgage Securities Corp., Commercial Mortgage
Pass-Through Certificates, Series 1998C2, Intermediate-Tier Distribution
Account." Any such account or accounts shall be an Eligible Account.
"Intermediate-Tier Distribution Amount": As defined in Section 4.01(b).
"Intermediate-Tier Principal Amount": With respect to any Class of
Uncertificated Intermediate-Tier Interests, (i)on or prior to the first
Distribution Date, an amount equal to the Original Intermediate -Tier
Principal Amount of such Class as specified in the Preliminary Statement
hereto, and (ii)as of any date of determination after the first Distribution
Date, an amount equal to the Certificate Balance of the Class of Related
Certificates on the Distribution Date immediately prior to such date of
determination (determined as adjusted pursuant to Section 1.02(iii)).
"Intermediate-Tier REMIC": One of three separate REMICs comprising the
Trust Fund, the assets of which consist of the Lower Tier Regular Interests,
such amounts as shall from time to time be held in the Intermediate-Tier
Distribution Account.
"Investment Account": As defined in Section 3.06(a).
"Issue Price": With respect to each Class of Certificates, the "issue
price" as defined in the REMIC Provisions.
"Late Collections": With respect to any Loan, all amounts (except Penalty
Charges) received thereon during any Due Period, whether as payments,
Insurance and Condemnation Proceeds, Liquidation Proceeds or otherwise, which
represent late payments or collections of principal or interest due in respect
of such Loan (without regard to any acceleration of amounts due thereunder by
reason of default) on a Due Date in a previous Due Period and not previously
received. With respect to any REO Loan, all amounts (except Penalty Charges)
received in connection with the related REO Property during any Due Period,
whether as Insurance and Condemnation Proceeds, Liquidation Proceeds, REO
Revenues or otherwise, which represent late collections of principal or
interest due or deemed due in respect of such REO Loan or the predecessor Loan
(without regard to any acceleration of amounts due under the predecessor Loan
by reason of default) on a Due Date in a previous Due Period and not
previously received.
"Lease Enhancement Insurer": Chubb Custom Insurance Company, together
with any assignee, successor or subsequent insurer.
"Lease Enhancement Policy": Any noncancelable insurance policy issued by
the Lease Enhancement Insurer to cover certain lease termination and rent
abatement (with respect to losses arising out of a condemnation) events
arising out of a casualty to, or condemnation of, certain Mortgaged
Properties.
"Lease Enhancement Policy Termination Event": As defined in Section
3.31(e).
"Liquidation Event": With respect to any Loan, any of the following
events: (i) payment in full of such Loan; (ii) the making of a Final Recovery
Determination with respect to such Loan; (iii) the repurchase of such Loan by
the CSFB Mortgage Loan Seller pursuant to Section 7 of the related Mortgage
Loan Purchase Agreement; (iv) the purchase of such Loan by the Servicer or the
Special Servicer pursuant to Section 3.18(b); (v) the purchase of any ARD Loan
by the Holder of 100% of the Percentage Interests in the Class V Certificates
pursuant to Section 9.03 or (vi) the purchase of such Loan by the CSFB
Mortgage Loan Seller, the Special Servicer, the Holders of more than 50% of
the Percentage Interests in the Controlling Class, or the Servicer pursuant to
Section 9.01.
"Liquidation Fee": A fee payable to the Special Servicer with respect to
each Specially Serviced Loan as to which the Special Servicer receives a full
or discounted payoff with respect thereto from the related Mortgagor or any
Liquidation Proceeds with respect thereto, equal to the product of the
Liquidation Fee Rate and the proceeds of such full or discounted payoff or the
net Liquidation Proceeds (net of the related costs and expenses associated
with the related liquidation) related to such liquidated Specially Serviced
Loan, as the case may be; provided, however, that no Liquidation Fee shall be
payable with respect to clauses (iii) (but only as it relates to a sale to the
Servicer or Special Servicer), (iv), (v) or (vi) of the definition of
Liquidation Proceeds.
"Liquidation Fee Rate": As defined in Section 3.11.
"Liquidation Proceeds": Cash amounts (other than Insurance and
Condemnation Proceeds and REO Revenues) received or paid by the Servicer in
connection with: (i) the liquidation of a Mortgaged Property or other
collateral constituting security for a Defaulted Loan, through trustee's sale,
foreclosure sale, REO Disposition or otherwise, exclusive of any portion
thereof required to be released to the related Mortgagor; (ii) the realization
upon any deficiency judgment obtained against a Mortgagor; (iii) the purchase
of a Defaulted Loan by the Servicer or the Special Servicer pursuant to
Section 3.18(b) or any other sale thereof pursuant to Section 3.18(c); (iv)
the repurchase of a Loan by the CSFB Mortgage Loan Seller pursuant to Section
7 of the related Mortgage Loan Purchase Agreement; (v) the purchase of such
Loan by the Holder of 100% of the Percentage Interests in the Class V
Certificates pursuant to Section 9.03; or (vi) the purchase of all Loans by
the CSFB Mortgage Loan Seller, Holders of more than 50% of the Percentage
Interests in the Controlling Class, or the Servicer pursuant to Section 9.01.
"Loan": Each of the mortgage loans, and the Water Street Participation,
transferred and assigned to the Trustee pursuant to Section 2.01, and from
time to time held in the Trust Fund, including any Loan that becomes a
Specially Serviced Loan. As used herein, the term "Loan" includes the related
Note, Mortgage and other documents contained in the related Mortgage File and
any related agreements.
"Loan Agreement": With respect to any Loan, the loan agreement, if any,
between the Originator and the Borrower, pursuant to which such Loan was made.
"Loan Documents": With respect to each Loan, to the extent applicable,
the Loan Agreement, the Mortgage, the Note, the Assignment of Leases (if
separate from the Mortgage), the Security Agreement, the Water Street
Participation Documents (in the case of Loan No. 2 only), any letters of
credit relating to the Additional Collateral Loans, any UCC financing
statements, the title insurance policy, all surveys, all insurance policies,
any environmental liability agreements, any escrow agreements for
improvements, any guaranties related to such Loan, any prior assignments of
mortgage in the event that the originator is not the originator of record, any
collateral assignments of property management agreements and other services
agreements required by the applicable commitment and other loan documents and
all modification, consolidation and extension agreements, if any.
"Loan Group 1": The group of Loans identified on the Mortgage Loan
Schedule as Loan Group 1 Loans.
"Loan Group 2": The group of Loans identified on the Mortgage Loan
Schedule as Loan Group 2 Loans.
"Loan Servicing Remittance Amount": With respect to any Servicer
Remittance Date, the sum of the amounts on deposit in the related Loan
Servicing Sub-Accounts on the related Determination Date after giving effect
to (a) any required or permitted withdrawals from the Construction Loan
Servicing Account pursuant to clauses (ii), (iii) and (iv) of Section 3.25(m),
and (b) the book-entry transfers, from the related Construction Loan Interest
Reserve Sub-Accounts, of funds in the amount of the aggregate of the Interest
Reserve Remittance Amounts for such Servicer Remittance Date.
"Loan Servicing Sub-Account": With respect to any Construction Loan, the
sub-account created pursuant to Section 3.25(r).
"Loan-to-Value Ratio": With respect to any Loan, as of any date of
determination, the fraction, expressed as a percentage, the numerator of which
is the scheduled principal balance of such Loan at the time of determination
and the denominator of which is the Original Value of the related Mortgaged
Property.
"Lock-Box Account": With respect to any Mortgaged Property, the account,
if any, created pursuant to any documents relating to a Loan to receive
revenues therefrom. Any Lock-Box Account shall be beneficially owned for
federal income tax purposes by the Person who is entitled to receive the
reinvestment income or gain thereon in accordance with the terms and
provisions of the related Loan and Section 3.06, which Person shall be taxed
on all reinvestment income or gain thereon. The Servicer shall be permitted to
make withdrawals therefrom for deposit into the related Cash Collateral
Accounts.
"Lock-Box Agreement": With respect to any Loan, the lock-box agreement,
if any, between the Originator or the applicable Mortgage Loan Seller and the
related Borrower, pursuant to which the related Lock-Box Account may have been
established.
"Lower-Tier Distribution Account": The segregated account or accounts
created and maintained by the Trustee, pursuant to Section 3.04(b), in trust
for the Certificateholders, which shall be entitled "The Chase Manhattan Bank,
as Trustee, in trust for the registered Holders of Credit Suisse First Boston
Mortgage Securities Corp., Commercial Mortgage Pass-Through Certificates,
Series 1998-C2, Lower-Tier Distribution Account." Any such account or accounts
shall be an Eligible Account.
"Lower-Tier Distribution Amount": As defined in Section 4.01(b).
"Lower-Tier Principal Amount": With respect to any Class of
Uncertificated Lower-Tier Interests, as of any Distribution Date, an amount
equal to the principal balance of the Related Mortgage Loans on the
Distribution Date immediately prior to such date of determination (determined
as adjusted pursuant to Section 1.02(iii)).
"Lower-Tier REMIC": One of three separate REMICs comprising the Trust
Fund, the assets of which consist of the Loans, any REO Property with respect
thereto, such amounts as shall from time to time be held in the Certificate
Account, the REO Account, if any, and the Lower-Tier Distribution Account, and
except as otherwise provided in this Agreement, all other property included in
the Trust Fund that is not in the Intermediate-Tier REMIC or the Upper-Tier
REMIC.
"MAI": Member of the Appraisal Institute.
"Management Agreement": With respect to any Loan, the Management
Agreement, if any, by and between the Manager and the related Borrower, or any
successor Management Agreement between such parties.
"Manager": With respect to any Loan, any property manager for the related
Mortgaged Property or Properties.
"Maturity Date": With respect to any Loan as of any date of
determination, the date on which the last payment of principal is due and
payable under the related Note, after taking into account all Principal
Prepayments received prior to such date of determination, but without giving
effect to (i) any acceleration of the principal of such Loan by reason of
default thereunder, (ii) any grace period permitted by the related Note or
(iii) any modification, waiver or amendment of such Loan granted or agreed to
by the Servicer or the Special Servicer pursuant to Section 3.20 occurring
prior to such date of determination.
"Mezzanine Loan": Any loan constituting "Mezzanine Debt" or a "Mezzanine
Loan," as identified in Exhibit E.
"Mezzanine Loan Collateral": With respect to any Mezzanine Loan, any
stock, partnership interests, membership interests or other equity that has
been pledged pursuant to such Mezzanine Loan.
"Mezzanine Loan Collateral Transferee": As defined in Section
3.08(a)(v)(C).
"Mezzanine Loan Holder": With respect to any Mezzanine Loan, the Holder
or obligee thereof.
"Monthly Interest Distributable Amount": As to any Distribution Date and
any Class of Regular Certificates other than the Class A-X Certificates, the
Accrued Certificate Interest Amount for such Class for such Distribution Date,
reduced by (i) such Class's share of (x) the Uncovered Prepayment Interest
Shortfall Amount for such Distribution Date and (y) Trust Fund indemnification
expenses incurred during the related Due Period pursuant to Sections 6.02 or
8.05 and (ii) any allocations to such Class of any Certificate Deferred
Interest for such Distribution Date. As to any Distribution Date and the Class
A-X Certificates, the Accrued Certificate Interest Amount for such Class for
such Distribution Date, reduced by such Class's share of (x) the Uncovered
Prepayment Interest Shortfall Amount for such Distribution Date and (y) Trust
Fund indemnification expenses incurred during the related Due Period pursuant
to Sections 6.02 or 8.05.
"Monthly Payment": With respect to any Loan (other than the United
Artists Loan), the scheduled monthly payment of principal and/or interest on
such Loan, excluding any Balloon Payment, which is payable by a Mortgagor
under the related Note and applicable law, without regard to any acceleration
of principal of such Loan by reason of default thereunder or any modification,
waiver or amendment of such Loan granted or agreed to by the Servicer or the
Special Servicer pursuant to Section 3.20. With respect to the United Artists
Loan, the scheduled semi-annual payment of principal and/or interest payable
on such Loan by the related Mortgagor under the related Note and applicable
law, without regard to any acceleration of principal of such Loan by reason of
default thereunder or any modification, waiver or amendment of such Loan
granted or agreed to by the Servicer or the Special Servicer pursuant to
Section 3.20.
"Moody's": Moody's Investors Service, Inc., and its successors in
interest.
"Mortgage": With respect to any Loan, the mortgage, deed of trust, deed
to secure debt or other instrument securing a Note and creating a lien on the
related Mortgaged Property.
"Mortgage Deferred Interest": With respect to any Loan that as of any Due
Date has been modified to reduce the rate at which interest is paid currently
below the related Mortgage Rate, to the extent interest accrued at a rate
equal to the amount of such reduction is capitalized, the excess, if any, of
(a) interest accrued on the Stated Principal Balance thereof during the
related Mortgage Interest Accrual Period at the Mortgage Rate over (b) the
interest portion of the related Monthly Payment or, if applicable, Assumed
Scheduled Payment due on such Due Date (calculated at the applicable reduced
rate).
"Mortgage File":
(A) With respect to any Loan, the following documents:
(i) the original Note, bearing, or accompanied by, all prior
and intervening endorsements or assignments showing a complete chain
of endorsement or assignment from the Originator of the Loan to the
applicable Mortgage Loan Seller, and further endorsed (at the
direction of the Depositor given pursuant to the related Mortgage
Loan Purchase Agreement) by the applicable Mortgage Loan Seller, on
its face or by allonge attached thereto, without recourse, to the
order of the Trustee in the following form: "Pay to the order of The
Chase Manhattan Bank, as trustee for the registered Holders of Credit
Suisse First Boston Mortgage Securities Corp., Commercial Mortgage
Pass-Through Certificates, Series 1998-C2, without recourse,
representation or warranty, express or implied";
(ii) a duplicate original Mortgage or, if such Mortgage has
been returned by the related recording office, an original or a copy
of a certified copy thereof from the applicable recording office and
originals (or original or copies of certified copies from the
applicable recording office) of any assignments thereof showing a
complete chain of assignment from the related Originator to the
applicable Mortgage Loan Seller, in each case with evidence of
recording indicated thereon;
(iii) an original (or a copy if the original has been sent by
the applicable Mortgage Loan Seller for recordation) assignment of
the Mortgage, in recordable form, from the applicable Mortgage Loan
Seller to "The Chase Manhattan Bank, as trustee for the registered
Holders of Credit Suisse First Boston Mortgage Securities Corp.,
Commercial Mortgage Pass-Through Certificates, Series 1998-C2";
(iv) an original or copy of any related Assignment of Leases
(if such item is a document separate from the Mortgage) and the
originals or copies of any assignments thereof showing a complete
chain of assignment from the Originator of the Loan to the applicable
Mortgage Loan Seller, in each case with evidence of recording
thereon;
(v) an original assignment of any related Assignment of Leases
(if such item is a document separate from the Mortgage), in
recordable form, from the applicable Mortgage Loan Seller to "The
Chase Manhattan Bank, as trustee for the registered Holders of Credit
Suisse First Boston Mortgage Securities Corp., Commercial Mortgage
Pass-Through Certificates, Series 1998-C2";
(vi) an original or copy of any related Security Agreement (if
such item is a document separate from the Mortgage) and the originals
or copies of any assignments thereof showing a complete chain of
assignment from the Originator of the Loan to the applicable Mortgage
Loan Seller;
(vii) an original assignment of any related Security Agreement
(if such item is a document separate from the Mortgage), in
recordable form, from the applicable Mortgage Loan Seller to "The
Chase Manhattan Bank, as trustee for the registered Holders of Credit
Suisse First Boston Mortgage Securities Corp., Commercial Mortgage
Pass-Through Certificates, Series 1998-C2";
(viii) originals or copies of all assumption, modification,
written assurance and substitution agreements, with evidence of
recording thereon, where appropriate, in those instances where the
terms or provisions of the Mortgage, Note or any related security
document have been modified or the Loan has been assumed;
(ix) the original lender's title insurance policy or a copy
thereof effective as of the date of the recordation of the Loan,
together with all endorsements or riders that were issued with or
subsequent to the issuance of such policy, insuring the priority of
the Mortgage as a first lien on the Mortgagor's fee interest in the
Mortgaged Property, or if the policy has not yet been issued, a
written commitment or interim binder, dated as of the date the
related Loan was funded;
(x) certified copies of the original or copy of any guaranty of
the obligations of the Mortgagor under the Loan;
(xi) certified copies of all UCC Financing Statements and
continuation statements or copies thereof sufficient to perfect (and
maintain the perfection of) the security interest held by the
originator of the Loan (and each assignee prior to the Trustee) in
and to the personalty of the Mortgagor at the Mortgaged Property (in
each case with evidence of filing thereon), and original UCC
assignments in a form suitable for filing, sufficient to transfer
such security interest to the Trustee;
(xii) the original power of attorney (with evidence of
recording thereon) granted by the Mortgagor if the Mortgage, Note or
other document or instrument referred to above was not signed by the
Mortgagor;
(xiii) with respect to any debt of a Borrower permitted under
the related Loan, a subordination agreement, standstill agreement or
other intercredit or agreement relating to such other debt, if any;
(xiv) if any related Lock-Box Agreement or Cash Collateral
Agreement is separate from the Mortgage or Loan Agreement, a copy
thereof; with respect to the Cash Collateral Accounts and Lock-Box
Accounts, if any, a copy of the UCC-1 financing statements, if any,
submitted for filing with respect to the applicable Mortgage Loan
Seller's security interest in the Cash Collateral Accounts and
Lock-Box Accounts and all funds contained therein (and UCC-2 or UCC-3
financing statements assigning such security interest to the Trustee
on behalf of the Certificateholders);
(xv) any Loan Agreement;
(xvi) the original Lease Enhancement Policy or Residual Value
Policy, if any;
(xvii) letters of credit, if any, relating to the Additional
Collateral Loans;
(xviii) if such Loan is a Construction Loan (a) an itemization
of all amounts funded therefrom at the closing thereof and (b) a
disbursement report with regard to such amounts and the allocation
thereof to the various Sub-Accounts for such Construction Loan;
(xix) the related intercredit or agreement, if any;
(xx) in the case of the Water Street Participation, the Water
Street Participation Documents; and
(xxi) any additional documents required to be added to the
Mortgage File pursuant to this Agreement.
(b) Notwithstanding paragraph (a) above, whenever the term "Mortgage
File" is used to refer to documents actually received by the Trustee, or
a Custodian appointed thereby, such term shall not be deemed to include such
documents and instruments required to be included therein unless they are
actually so received.
"Mortgage Interest Accrual Period": With respect to any Loan, the period
during which interest accrues pursuant to the related Note.
"Mortgage Loan Purchase Agreement": The agreement between the Depositor
and the related Mortgage Loan Seller, dated as of November 11, 1998, relating
to the transfer of all of such Mortgage Loan Seller's right, title and
interest in and to the Loans.
"Mortgage Loan Schedule": The list of Loans transferred on the Closing
Date to the Trustee as part of the Trust Fund, attached hereto as Exhibit B,
which list sets forth the following information with respect to each Loan:
(i) the loan number (as specified in Annex A to the
Prospectus Supplement);
(ii) the Mortgagor's name and property name;
(iii) the street address (including city, state and zip code)
of the related Mortgaged Property;
(iv) (a) the Mortgage Rate in effect at the Cut-off Date and
(b) with respect to each ARD Loan, the revised rate applicable after
the related anticipated repayment date;
(v) the Net Mortgage Rate in effect at the Cut-off Date;
(vi) the original principal balance;
(vii) the Cut-off Date Principal Balance;
(viii) the (a) original term to stated maturity, (b) remaining
term to stated maturity, (c) Maturity Date and (d) with respect to
each ARD Loan, the Anticipated Repayment Date;
(ix) the original and remaining amortization terms;
(x) the amount of the Monthly Payment due on the first Due
Date following the Cut-off Date;
(xi) the Original Value of the related Mortgaged Property;
(xii) the Loan-to-Value Ratio at the Cut-off Date;
(xiii) the Loan interest accrual method;
(xiv) the Underwritten Debt Service Coverage Ratio and the
Underwritten Net Cash Flow;
(xv) the applicable Primary Servicing Fee Rate;
(xvi) the Due Date;
(xvii) whether such loan is an ARD Loan;
(xviii) whether the Loan provides for the establishment of a
Lock-Box Account as of the Cut-off Date and, if so, the type of
Lock-Box Account;
(xix) whether the Loan is subject to defeasance;
(xx) whether such Loan incorporates a ground lease;
(xxi) whether such Loan has the benefit of a Lease Enhancement
Policy and/or a Residual Value Policy and, if so, which;
(xxii) whether such Loan is in Loan Group 1 or Loan Group 2; and
(xxiii) the property type;
(xxiv) with respect to any Loan that is a credit lease loan,
(a) the guarantor, if any, of the obligations under the
related credit lease (or, if there is no such
guarantor, the related tenant) and
(b) whether such lease is a Bondable Lease, a Triple
Net Lease or a Double Net Lease (each as defined in
the Prospectus Supplement); and
(xxv) with respect to any Construction Loan,
(a) the date on which the related lease commences and
(b) the related Outside Completed Date.
Such Mortgage Loan Schedule also shall set forth the aggregate of the
amounts described under clause (vii) above for all of the Loans. Such list may
be in the form of more than one list, collectively setting forth all of the
information required.
"Mortgage Loan Seller": Either the CSFB Mortgage Loan Seller or the Trust
Mortgage Loan Seller.
"Mortgage Pass-Through Rate": With respect to any Loan that provides for
calculations of interest based on a 360-day year composed of twelve months of
30 days each for any Mortgage Interest Accrual Period, the Net Mortgage Rate
thereof. With respect to any Loan that provides for calculations of interest
based on a 360-day year and the actual number of days elapsed, (a) for any
Mortgage Interest Accrual Period relating to an Interest Accrual Period
beginning in any January, February, April, June, September and November and in
any December occurring in a year immediately preceding any year that is not a
leap year, the Net Mortgage Rate thereof or (b) for any Mortgage Interest
Accrual Period relating to any Interest Accrual Period beginning in any March,
May, July, August and October and in any December occurring in a year
immediately preceding a year that is a leap year, the product of the Net
Mortgage Rate thereof and a fraction whose numerator is 31 and whose
denominator is 30.
"Mortgage Rate": With respect to: (i) any Loan on or prior to its
Maturity Date, the annual rate at which interest is scheduled (in the absence
of a default) to accrue on such Loan from time to time in accordance with the
related Note and applicable law; (ii) any Loan after its Maturity Date, the
annualized rate described in clause (i) above determined without regard to the
passage of such Maturity Date; and (iii) any REO Loan, the annualized rate
described in clause (i) or (ii), as applicable, above, determined as if the
predecessor Loan had remained outstanding. For purposes of calculating
Mortgage Pass-Through Rates and the Weighted Average Net Mortgage Rate, the
Mortgage Rate for any Loan whose interest rate is reduced will be the Mortgage
Rate of such Loan without taking into account any reduction in the interest
rate by a bankruptcy court pursuant to a plan of reorganization or pursuant to
any of its equitable powers or any reduction in the interest rate resulting
from a work-out.
"Mortgage Trust Fund": The trust fund established under the Trust
Agreement.
"Mortgaged Property": The underlying real property (including any REO
Property) that secures a Loan, in each case consisting of a parcel or parcels
of land improved by a commercial and/or multifamily building or facility,
together with any personal property, fixtures, leases and other property or
rights pertaining thereto.
"Mortgagor": The obligor or obligors on a Note, including, without
limitation, any Person that has acquired the related Mortgaged Property and
assumed the obligations of the original obligor under the Note.
"MultiProperty Loan ": A Loan secured by more than one Mortgaged
Property.
"Net Investment Earnings": With respect to any of the Certificate
Account, any Lock-Box Account, any Cash Collateral Account, the Interest
Reserve Account, any Servicing Account, the Construction Loan Servicing
Account or the REO Account, for any period from any Distribution Date to the
immediately succeeding P&I Advance Date, the amount, if any, by which the
aggregate of all interest and other income realized during such period on
funds relating to the Trust Fund held in such account exceeds the aggregate of
all losses, if any, incurred during such period in connection with the
investment of such funds in accordance with Section 3.06 (or, in the case of
the Construction Loan Servicing Account, Section 3.25).
"Net Investment Loss": With respect to any of the Certificate Account,
any Lock-Box Account, any Cash Collateral Account, the Interest Reserve
Account, any Servicing Account, the Construction Loan Servicing Account or the
REO Account for any period from any Distribution Date to the immediately
succeeding P&I Advance Date, the amount, if any, by which the aggregate of all
losses, if any, incurred during such period in connection with the investment
of funds relating to the Trust Fund held in such account in accordance with
Section 3.06 (or, in the case of the Construction Loan Servicing Account,
Section 3.25) exceeds the aggregate of all interest and other income realized
during such period on such funds.
"Net Mortgage Pass-Through Rate": With respect to any Loan and any
Distribution Date, the Mortgage Pass-Through Rate for such Loan for the
related Interest Accrual Period minus the sum of the Servicing Fee Rate and
the Trustee Fee Rate.
"Net Mortgage Rate": With respect to any Interest Accrual Period and any
Loan, a per annum rate equal to the Mortgage Rate for such Loan as of the
Cut-off Date minus the related Primary Servicing Fee Rate plus, with respect
to Loan Nos. 18, 20, 28 and 85, the related Servicing Fee Reimbursement Rate.
"Net Operating Income": With respect to any Mortgaged Property, for any
Mortgagor's fiscal year end, the total operating revenues derived from such
Mortgaged Property during such period, minus the total operating expenses
incurred in respect of such Mortgaged Property during such period, other than
(i) non-cash items such as depreciation, (ii) amortization, (iii) actual
capital expenditures and (iv) debt service on the related Loan.
"New CVS Store": Any CVS Store Substituted for a CVS Store pursuant to
CVS's right to make such substitutions in the event that a CVS Store is not
completed before any applicable Outside Completion Date.
"New Lease": Any lease of REO Property entered into at the direction of
the Special Servicer on behalf of the Trust, including any lease renewed,
modified or extended on behalf of the Trust, if the Trust Fund has the right
to renegotiate the terms of such lease.
"Nonrecoverable Advance": Any Nonrecoverable P&I Advance or
Nonrecoverable Servicing Advance.
"Nonrecoverable P&I Advance": Any P&I Advance previously made or proposed
to be made in respect of a Loan or REO Loan which, in the judgment (in
accordance with the Servicing Standard) of the Servicer, the Special Servicer
or the Trustee, as applicable, will not be ultimately recoverable, together
with any accrued and unpaid interest thereon, from Late Collections or any
other recovery on or in respect of such Loan or REO Loan. The determination by
the Servicer, the Special Servicer or the Trustee, as applicable, that it has
made (or, in the case of a determination made by the Special Servicer, that
the Servicer has made) a Nonrecoverable P&I Advance or that any proposed P&I
Advance, if made, would constitute a Nonrecoverable P&I Advance, shall be
evidenced by an Officer's Certificate delivered to (i) the Trustee and the
Depositor, in the case of the Servicer, (ii) to the Servicer in the case of
the Special Servicer, and (iii) to the Depositor and the Servicer, in the case
of the Trustee, setting forth such determination of nonrecoverability and the
considerations of the Servicer, the Special Servicer or the Trustee, as
applicable, forming the basis of such determination (which shall include but
shall not be limited to information, to the extent available, such as related
income and expense statements, rent rolls, occupancy status, property
inspections, and shall include an Appraisal of the related Loan or Mortgaged
Property, the cost of which Appraisal shall be advanced by the Servicer as a
Servicing Advance). The Trustee shall be entitled to conclusively rely on the
Servicer's determination that a P&I Advance is nonrecoverable. The Servicer
and the Trustee shall be entitled to conclusively rely on the Special
Servicer's determination that a P&I Advance is nonrecoverable.
"Nonrecoverable Servicing Advance": Any Servicing Advance previously made
or proposed to be made in respect of a Loan or REO Property which, in the
judgment (in accordance with the Servicing Standard) of the Servicer, the
Special Servicer or the Trustee, as the case may be, will not be ultimately
recoverable, together with any accrued and unpaid interest thereon, from Late
Collections or any other recovery on or in respect of such Loan or REO
Property. The determination by the Servicer, the Special Servicer or the
Trustee, as the case may be, that it has made (or, in the case of a
determination made by the Special Servicer, that the Servicer has made) a
Nonrecoverable Servicing Advance or that any proposed Servicing Advance, if
made, would constitute a Nonrecoverable Servicing Advance, shall be evidenced
by an Officer's Certificate delivered to (i) the Trustee and the Depositor, in
the case of the Servicer, (ii) to the Servicer in the case of the Special
Servicer, and (iii) to the Depositor and the Servicer, in the case of the
Trustee. The Officer's Certificate shall set forth such determination of
nonrecoverability and the considerations of the Servicer, the Special Servicer
or the Trustee, as applicable, forming the basis of such determination (which
shall include but shall not be limited to information, to the extent
available, such as related income and expense statements, rent rolls,
occupancy status and property inspections, and shall include an Appraisal of
the related Loan or Mortgaged Property, the cost of which Appraisal shall be
advanced by the Servicer as a Servicing Advance). The Trustee will be entitled
to conclusively rely on the Servicer's determination that a Servicing Advance
is nonrecoverable. The Servicer and the Trustee shall be entitled to
conclusively rely on the Special Servicer's determination that a Servicing
Advance is a Nonrecoverable Servicing Advance.
"Non-Registered Certificate": Unless and until registered under the
Securities Act, any Certificate other than a Public Certificate.
"Non-U.S. Person": Any person other than a U.S. Person, unless, with
respect to the Transfer of a Residual Certificate, (i) such person holds such
Residual Certificate in connection with the conduct of a trade or business
within the United States and furnishes the Transferor and the Certificate
Registrar with an effective Internal Revenue Service Form 4224 or (ii) the
Transferee delivers to both the Transferor and the Certificate Registrar an
opinion of a nationally recognized tax counsel to the effect that such
Transfer is in accordance with the requirements of the Code and the
regulations promulgated thereunder and that such Transfer of the Residual
Certificate will not be disregarded for federal income tax purposes.
"Note": The original executed note evidencing the indebtedness of a
Mortgagor under a Loan, together with any rider, addendum or amendment
thereto.
"Notional Balance": For any date of determination and the Class A-X
Certificates, an amount equal to the sum of the Certificate Balances of the
Classes of Regular Certificates (other than the Class A-X Certificates) as of
the preceding Distribution Date (after giving effect to the distribution of
principal on such Distribution Date) or, in the case of the first Distribution
Date, the Cut-off Date.
"Officer's Certificate": A certificate signed by a Servicing Officer of
the Servicer or the Special Servicer, as the case may be, or a Responsible
Officer of the Trustee.
"Operating Statement Analysis": With respect to each Loan and REO
Property, a report prepared by the Servicer or Special Servicer, as
applicable, substantially containing the information described in Exhibit I-7
attached hereto.
"Opinion of Counsel": A written opinion of counsel, who may be salaried
counsel for the Depositor, the Servicer or the Special Servicer, acceptable in
form and delivered to the Trustee, except that any opinion of counsel relating
to (a) the qualification of any REMIC created hereunder as a REMIC,
(b) compliance with the REMIC Provisions or (c) the resignation of the
Depositor, the Servicer or the Special Servicer pursuant to Section 6.04 must
be an opinion of counsel that is in fact Independent of the Depositor, the
Servicer or the Special Servicer, as applicable.
"Optimal Interest Distribution Amount": As to any Distribution Date and
any Class of Regular Certificates, the sum of the Monthly Interest
Distributable Amount and the Unpaid Interest Shortfall Amount for such Class
for such Distribution Date.
"Original Certificate Balance": With respect to any Class of Regular
Certificates (other than the Class A-X Certificates), the initial aggregate
principal amount thereof as of the Closing Date, in each case as specified in
the Preliminary Statement.
"Original Value": The Appraised Value of a Mortgaged Property based upon
the Appraisal conducted in connection with the origination of the related
Loan.
"Originator": Any institution that originated a Loan.
"OTS": The Office of Thrift Supervision or any successor thereto.
"Outside Completion Date": The latest date upon which a CVS Store must be
completed before CVS is permitted to substitute a New CVS Store as collateral
in respect of a Construction Loan, as set forth in the related Loan Documents,
subject to the extension rights set forth therein.
"Owner": As defined in Section 3.08(a)(v)(C).
"Ownership Interest": As to any Certificate, any ownership or security
interest in such Certificate as the Holder thereof and any other interest
therein, whether direct or indirect, legal or beneficial, as owner or as
pledgee.
"Pass-Through Rate": As to each Class of Certificates other than the
Class A-X and Class E Certificates, the respective fixed rate per annum
specified for such Class in the Preliminary Statement; as to the Class A-X
Certificates, the Class A-X PassThrough Rate; and as to the Class E
Certificates, the Class E Pass-Through Rate.
"Penalty Charges": With respect to any Loan (or successor REO Loan), any
amounts actually collected thereon from the Mortgagor that represent late
payment charges or Default Interest, other than a Prepayment Premium or Yield
Maintenance Charge.
"Percentage Interest": As to any Certificate, the percentage interest
evidenced thereby in distributions required to be made with respect to the
related Class. With respect to any Regular Certificate, the percentage
interest is equal to the Denomination of such Certificate divided by the
initial Certificate Balance (or, in the case of the Class A-X Certificates,
the Notional Balance) of such Class of Certificates as of the Closing Date.
With respect to a Class V or Residual Certificate, the percentage interest as
set forth on the face thereof.
"Permanent Loan Phase": With respect to any Construction Loan, the period
between (i) the earlier of (a) the Substantial Completion of the CVS
Improvements on the Mortgaged Property securing such Construction Loan and (b)
the Date of Rent Commencement under the related Construction Loan Lease and
(ii) the earlier of (a) the Maturity Date of such Construction Loan and (b)
the date such Construction Loan is repaid in full.
"Permitted Institutional Transferee": With respect to any Mezzanine Loan,
any proposed transferee thereof that is (i) an affiliate of the Underwriter;
(ii) an insurance company, bank, savings and loan association, trust company,
commercial credit corporation, pension plan, pension fund or pension fund
advisory firm, mutual fund or other investment company, governmental entity or
plan, "qualified institutional buyer" within the meaning of Rule 144A under
the Securities Act (other than a broker/dealer) or an institution
substantially similar to any of the foregoing, in each case under this
clause (ii) having at least $250,000,000 in capital/statutory surplus or
shareholder's equity and at least $12,000,000,000 in total assets, and being
experienced in making commercial real estate loans, as determined by the
Special Servicer; or (iii) any entity wholly owned by any one or more
institutions meeting the criteria in clause (ii). The Special Servicer shall
obtain from the proposed transferee, and shall be entitled to rely on, (i) an
officer's certificate of a proposed transferee that such transferee satisfies
the requirements of this definition and (ii) in the case of any proposed
transferee that is an entity described in and meeting the criteria in
clause (ii) of the immediately preceding sentence, the most recent financial
statements of such transferee.
"Permitted Investments": Any one or more of the following obligations or
securities, regardless whether issued by the Depositor, the Servicer, the
Special Servicer, the Trustee or any of their respective Affiliates and having
the required ratings, if any, provided for in this definition:
(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 maturing one year or less
after the date of issuance and 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 a Permitted Investment
only if such investment would not result in the downgrading,
withdrawal or qualification of the then-current rating assigned by
each Rating Agency to any Certificate as confirmed in writing;
(ii) time deposits, unsecured certificates of deposit, or
bankers' acceptances that mature in one year or less after the date
of issuance and are issued or held by (x) any depository institution
or trust company 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 at least
"P-1" by Moody's and "F-1+" by Fitch (if rated by Fitch) or would not
result in the downgrading, withdrawal or qualification of the
then-current rating assigned by each Rating Agency to any
Certificate, as confirmed in writing by such Rating Agency or (y)
Bankers Trust Company for so long as there is no downgrade,
withdrawal or qualification of the rating on the long-term unsecured
obligations of such institution in effect as of the Cut-off Date;
(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;
(iv) debt obligations maturing in one year or less 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 (i) ratings from Fitch at least equal to "AA-"
and from Moody's at least equal to the minimum maturity-based ratings
described below or (ii) such other ratings (as confirmed by the
applicable Rating Agency in writing) as will not result in a
downgrade, qualification or withdrawal of the then-current rating of
the Certificates that are currently being rated by such Rating
Agency; provided, however, that securities issued by any particular
corporation will not be Permitted Investments to the extent that
investment therein will cause the then outstanding principal amount
of securities issued by such corporation and held in the accounts
established hereunder to exceed 10% of the sum of the aggregate
principal balance and the aggregate principal amount of all Permitted
Investments in such accounts;
(v) commercial paper (including both non-interest-bearing
discount obligations and interest-bearing obligations) payable on
demand or on a specified date maturing in 1 year or less after the
date of issuance thereof and which is rated at least, "P-1" by
Moody's and "F-1+" by Fitch;
(vi) units of investment funds that maintain a constant net
asset value, money market funds, rated "Aaa" by Moody's and in the
highest category by Fitch; and
(vii) any other demand, money market or time deposit,
obligation, security or investment, (a) with respect to which each
Rating Agency shall have confirmed in writing that such investment
will not result in a downgrade, qualification or withdrawal of the
then-current rating of the Certificates that are currently being
rated by such Rating Agency and (b) which qualifies as a "cash flow
investment" pursuant to Section 860G(a)(6) of the Code;
provided that such instrument or security qualifies as a "cashflow investment"
pursuant to Section 860G(a)(6) of the Code and that (A) in each case, the
minimum maturity-based ratings by Moody's for investments are: (i) if the
investment matures within one month, "A2" or "P-1"; (ii) if the investment
matures more than one month later but within three months, "A1" and "P-1";
(iii) if the investment matures more than three months but within six months,
"Aa3" and "P-1"; and (iv) if the investment matures more than six months later,
"Aaa" and "P-1"; (B) no such instrument shall be a Permitted Investment (i) if
such instrument evidences principal and interest payments derived from
obligations underlying such instrument and the interest payments with respect
to such instrument provide a yield to maturity at the time of acquisition of
greater than 120% of the yield to maturity at par of such underlying
obligations or (ii) if such instrument may be redeemed at a price below the
purchase price; and (C) no amount beneficially owned by any REMIC created
hereunder (even if not yet deposited in the Trust) may be invested in
investments (other than money market funds) treated as equity interests for
federal income tax purposes, unless the Servicer receives an Opinion of
Counsel, at its own expense, to the effect that such investment will not
adversely affect the status of any REMIC created hereunder as a REMIC under
the Code or result in imposition of a tax on any REMIC created hereunder.
Permitted Investments that are subject to prepayment or call may not be
purchased at a price in excess of par.
"Permitted Mezzanine Loan Holder": With respect to any Mezzanine
Loan, the CSFB Mortgage Loan Seller, any Permitted Institutional Transferee or
any other Mezzanine Loan Holder with respect to which each Rating Agency has
confirmed in writing to the Special Servicer and the Trustee that the holding
of such Mezzanine Loan by such Person would not cause a qualification,
downgrade or withdrawal of any of such Rating Agency's then-current ratings on
the Certificates.
"Person": Any individual, corporation, partnership, limited liability
company, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political
subdivision thereof.
"P&I Advance": As to any Loan or REO Loan, any advance made by the
Servicer or the Trustee, as applicable, pursuant to Section 4.03 or Section
7.05.
"P&I Advance Date": The Business Day immediately prior to each
Distribution Date.
"P&I Advance Determination Date": With respect to any Distribution
Date, the second Business Day immediately prior thereto.
"Plan": As defined in Section 5.02(c).
"Policy Escrow Account": As defined in Section 4.03(f)(iii).
"Prepayment Assumption": With respect to all Loans other than the ARD
Loans, the assumption that all payments required to be made on such Loans
according to their contractual terms (including repayment in full on their
respective maturity dates) are so made. With respect to all ARD Loans, the
assumption that the ARD Loans will be fully prepaid on their related
Anticipated Repayment Dates.
"Prepayment Date": With respect to any Principal Prepayment, the date
on which such Principal Prepayment is to be made.
"Prepayment Interest Excess": With respect to any Distribution Date,
the aggregate amount, with respect to all Loans that were subject to Principal
Prepayment in full or in part, or as to which Insurance and Condemnation
Proceeds were received by the Servicer or Special Servicer for application to
such Loans, in each case after the Due Date in the month of such Distribution
Date and on or prior to the related Determination Date, the amount of interest
accrued at the Mortgage Rate (plus, if applicable, the related Servicing Fee
Reimbursement Rate) for such Loans on the amount of such Principal Prepayments
or Insurance and Condemnation Proceeds after the Mortgage Interest Accrual
Period relating to such Due Date and accruing in the manner set forth in the
Loan Documents relating to such Loans, to the extent such interest is
collected by the Servicer or the Special Servicer.
"Prepayment Interest Shortfall": With respect to any Distribution
Date, for each Loan that was subject to a Principal Prepayment in full or in
part, or as to which Insurance and Condemnation Proceeds were received by the
Servicer or Special Servicer for application to such Loan, in each case after
the Determination Date in the calendar month preceding such Distribution Date
but prior to the Due Date in the related Due Period (or, with respect to the
United Artists Loan, prior to the first day of the calendar month in which
such Distribution Date occurs), the amount of interest that would have accrued
at the Net Mortgage Pass-Through Rate for such Loan on the amount of such
Principal Prepayment or Insurance and Condemnation Proceeds during the period
commencing on the date as of which such Principal Prepayment or Insurance and
Condemnation Proceeds were applied to the unpaid principal balance of the Loan
and ending on (and including) the day immediately preceding such Due Date (or,
with respect to the United Artists Loan, ending on (and including) the first
day of the calendar month in which such Distribution Date occurs).
"Prepayment Premium": Any premium, penalty or fee (other than a Yield
Maintenance Charge) paid or payable, as the context requires, by a Mortgagor
in connection with a Principal Prepayment.
"Primary Servicing Fee": With respect to each Loan for which there is
a Primary Servicing Fee Rate set forth in the Mortgage Loan Schedule, the fee
payable to the related Seller-Servicer under the Seller-Servicer Agreement or
to the Servicer pursuant to Section 3.11(a), based on the Primary Servicing
Fee Rate.
"Primary Servicing Fee Rate": With respect to each Loan primarily
serviced by a Seller-Servicer, the per annum rate set forth on the Mortgage
Loan Schedule with respect thereto, and 0.05% per annum with respect to each
Loan primarily serviced by the Servicer.
"Principal Distribution Amount": As to any Distribution Date, the sum
of (i) the amount collected or otherwise received on or with respect to
principal of the Loans during the related Due Period and (ii) that portion of
the P&I Advance, if any, made in respect of principal of the Loans with
respect to such Distribution Date.
"Principal Prepayment": Any payment of principal made by the
Mortgagor on a Loan that is received in advance of its scheduled Due Date and
which is not accompanied by an amount of interest representing scheduled
interest due on any date or dates in any month or months subsequent to the
month of prepayment, other than any amount paid in connection with the release
of the related Mortgaged Property through defeasance.
"Private Certificate": Any Class F, Class G, Class H, Class I or
Class J Certificate.
"Private Definitive Certificate": Any Private Certificate other than
a Private Global Certificate.
"Private Global Certificates": Any Class F Book-Entry Certificate or
Class G Book-Entry Certificate, so long as such Certificates are in book-entry
form.
"Project Budget": With respect to any Construction Loan, the Project
Budget as defined in the related CSFB Construction Loan Agreement.
"Project Plans and Specifications": With respect to any Construction
Loan, the construction plan and specifications for the CVS Improvements to be
constructed on the related Mortgaged Property.
"Prospectus": The Prospectus dated November 10, 1998, as supplemented
by the Prospectus Supplement.
"Prospectus Supplement": The Prospectus Supplement dated November 20,
1998, relating to the offering of the Public Certificates.
"Public Certificate": Any Class A-1, Class A-2, Class A-X, Class B,
Class C, Class D or Class E Certificate.
"Punch List Items": With respect to any Construction Loan, those
details of construction, decoration and mechanical and electrical adjustment
that in the aggregate are minor in character and do not materially interfere
with the related Tenants use or enjoyment of the related CVS Improvements.
"Purchase Price": With respect to any Loan to be purchased by a
Mortgage Loan Seller pursuant to Section 7 of the related Mortgage Loan
Purchase Agreement, by the Servicer or the Special Servicer pursuant to
Section 3.18(b), or by the CSFB Mortgage Loan Seller, the Special Servicer,
the Holders of a majority of the Percentage Interests in the Controlling Class
or the Servicer pursuant to Section 9.01 or to be otherwise sold pursuant to
Section 3.18(c), a price equal to the sum of the following:
(i) the outstanding principal balance of such Loan as of the
date of purchase;
(ii) all accrued and unpaid interest on such Loan at the
related Mortgage Rate in effect from time to time to but not
including the Due Date in the Due Period of purchase;
(iii) all related unreimbursed Servicing Advances plus
accrued and unpaid interest on related Advances at the Reimbursement
Rate (except as otherwise provided in Section 4.03(d)), and unpaid
Servicing Fees, Primary Servicing Fees and Special Servicing Fees
allocable to such Loan; and
(iv) if such Loan is being purchased by the CSFB Mortgage
Loan Seller pursuant to Section 7 of the related Mortgage Loan
Purchase Agreement, all reasonable out-of-pocket expenses reasonably
incurred or to be incurred by the Servicer, the Special Servicer, the
Depositor and the Trustee in respect of the Breach or Defect giving
rise to the repurchase obligation, including any expenses arising out
of the enforcement of the repurchase obligation.
With respect to any REO Property to be sold pursuant to Section 3.18(c), the
amount calculated in accordance with the preceding sentence in respect of the
related REO Loan.
"Qualified Institutional Buyer": As defined in Section 5.02(b).
"Qualified Insurer": (i) With respect to any Loan, REO Loan or REO
Property, an insurance company or security or bonding company qualified to
write the related Insurance Policy in the relevant jurisdiction with a minimum
claims paying ability rating of at least "A2" by Moody's, "A" by S&P and "A"
by Fitch if then rated by Fitch, and (ii) with respect to the fidelity bond
and errors and omissions Insurance Policy required to be maintained pursuant
to Section 3.07(c), an insurance company that has a claims paying ability
rated no lower than two ratings below the rating assigned to the then highest
rated outstanding Certificate, but in no event lower than "A" by Fitch if then
rated by Fitch, "A" by S&P and "Baa3" by Moody's, or, in the case of clauses
(i) and (ii), such other rating as each Rating Agency shall have confirmed in
writing will not cause such Rating Agency to downgrade, qualify or withdraw
the then-current rating assigned to any of the Certificates that are then
currently being rated by such Rating Agency.
"QIB Investment Representation Letter": As defined in Section 5.02(b).
"Rated Final Distribution Date": As to each Class of Public Certificates
and each Class of Private Certificates, other than the Class J Certificates,
the Distribution Date occurring in November 2030.
"Rating Agency": Each of Fitch, Moody's or their successors in interest.
If any of such rating agencies or any successor thereto ceases to remain in
existence, "Rating Agency" shall be deemed to refer to any other nationally
recognized statistical rating agency, or other comparable Person, designated
by the Depositor to replace the rating agency that has ceased to exist. Notice
of such designation shall be given to the Trustee and the Servicer, and the
specific ratings of Fitch and Moody's herein referenced shall be deemed to
refer to the equivalent ratings of the party so designated.
"Record Date": With respect to any Distribution Date other than the first
Distribution Date, the last Business Day of the month immediately preceding
the month in which such Distribution Date occurs and, with respect to the
first Distribution Date, the Closing Date.
"Reduction Rate": A rate per annum equal to the average of the
Pass-Through Rates of each Class to which an Appraisal Reduction has been
allocated (in accordance with Section 4.05 hereof), weighted on the basis of
the amount of Appraisal Reductions allocated to such Class.
"Registrar Office": As defined in Section 5.02(a).
"Regular Certificate": Any Public Certificate or Private Certificate.
"Regular Yield Protection Payment Amount": As defined in the definition
of Yield Protection Payment.
"Regulation S Investment Representation Letter": As defined in Section
5.02(b).
"Reimbursement Rate": The rate per annum applicable to the accrual of
interest on Servicing Advances in accordance with Section 3.03(d) and P&I
Advances in accordance with Section 4.03(d), which rate per annum shall equal
the "Prime Rate" published in the "Money Rates" section of The Wall Street
Journal (or, if such section or publication is no longer available, such other
comparable publication as is determined by the Trustee in its sole discretion)
as may be in effect from time to time, or, if the "Prime Rate" no longer
exists, such other comparable rate (as determined by the Trustee in its
reasonable discretion) as may be in effect from time to time.
"Regulation S Global Certificate": As defined in Section 5.01(a).
"Related Certificates" and "Related Uncertificated Intermediate-Tier
Interest": For the following Classes of Uncertificated Intermediate-Tier
Interests, the related Class of Certificates set forth below and for the
following Classes of Certificates, the related Class of Uncertificated
Intermediate-Tier Interests set forth below:
Related Uncertificated
Related Certificates Intermediate-Tier Interest
- -------------------- --------------------------
Class A-1 Certificate Class MA-1 Uncertificated Interest
Class A-2 Certificate Class MA-2 Uncertificated Interest
Class B Certificate Class MB Uncertificated Interest
Class C Certificate Class MC Uncertificated Interest
Class D Certificate Class MD Uncertificated Interest
Class E Certificate Class ME Uncertificated Interest
Class F Certificate Class MF Uncertificated Interest
Class G Certificate Class MG Uncertificated Interest
Class H Certificate Class MH Uncertificated Interest
Class I Certificate Class MI Uncertificated Interest
Class J Certificate Class MJ Uncertificated Interest
"Related Components" and "Related Uncertificated Intermediate-Tier
Interest": For such Classes of Uncertificated Intermediate-Tier Interests, the
related Component (which are UpperTier Regular Interests represented by the
Class A-X Certificates) set forth below and for the following Components, the
related Class of Uncertificated Intermediate-Tier Interests set forth below:
Related Upper-Tier Related Uncertificated
Regular Interest Intermediate-Tier Interest
- ------------------ --------------------------
Class MA-1 Component Class MA-1 Uncertificated Interest
Class MA-2 Component Class MA-2 Uncertificated Interest
Class MB Component Class MB Uncertificated Interest
Class MC Component Class MC Uncertificated Interest
Class MD Component Class MD Uncertificated Interest
Class ME Component Class ME Uncertificated Interest
Class MF Component Class MF Uncertificated Interest
Class MG Component Class MG Uncertificated Interest
Class MH Component Class MH Uncertificated Interest
Class MI Component Class MI Uncertificated Interest
Class MJ Component Class MJ Uncertificated Interest
"Related Mortgage Loan": For each Class of Uncertificated Lower-Tier
Interests, the corresponding Loan having the same principal balance and
remittance rate as such Class, as specified in the Preliminary Statement.
"Remaining Principal Distributable Amount": As to any Distribution Date
and any Class of Subordinate Certificates, the amount, if any, by which the
Principal Distribution Amount for such Distribution Date exceeds the aggregate
amount distributed in respect of such amounts on such Distribution Date to all
Classes senior to such given Class.
"REMIC": A "real estate mortgage investment conduit" as defined in
Section 860D of the Code (or any successor thereto).
"REMIC Provisions": Provisions of the federal income tax law relating to
real estate mortgage investment conduits, which appear at Sections 860A
through 860G of Subchapter M of Chapter 1 of Subtitle A of the Code, and
related provisions, and temporary and final regulations and, to the extent not
inconsistent with such temporary and final regulations, proposed regulations,
and published rulings, notices and announcements promulgated thereunder, as
the foregoing may be in effect from time to time.
"Rents from Real Property": With respect to any REO Property, gross
income of the character described in Section 856(d) of the Code, which income,
subject to the terms and conditions of that Section of the Code in its present
form, does not include:
(i) except as provided in Section 856(d)(4) or (6) of the
Code, any amount received or accrued, directly or indirectly, with
respect to such REO Property, if the determination of such amount
depends in whole or in part on the income or profits derived by any
Person from such property (unless such amount is a fixed percentage
or percentages of receipts or sales and otherwise constitutes Rents
from Real Property);
(ii) any amount received or accrued, directly or
indirectly, from any Person if the Trust Fund owns directly or
indirectly (including by attribution) a ten percent or greater
interest in such Person determined in accordance with Sections
856(d)(2)(B) and (d)(5) of the Code;
(iii) any amount received or accrued, directly or
indirectly, with respect to such REO Property if any Person Directly
Operates such REO Property;
(iv) any amount charged for services that are not
customarily furnished in connection with the rental of property to
tenants in buildings of a similar Class in the same geographic market
as such REO Property within the meaning of Treasury Regulations
Section 1.856-4(b)(1) (whether or not such charges are separately
stated); and
(v) rent attributable to personal property unless such
personal property is leased under, or in connection with, the lease
of such REO Property and, for any taxable year of the Trust Fund,
such rent is no greater than 15 percent of the total rent received or
accrued under, or in connection with, the lease.
"REO Account": A segregated custodial account or accounts created and
maintained by the Special Servicer pursuant to Section 3.16 on behalf of the
Trustee in trust for the Certificateholders, which shall be entitled "Lennar
Partners, Inc., as Special Servicer, in trust for The Chase Manhattan Bank, as
Trustee, for Holders of Credit Suisse First Boston Mortgage Securities Corp.
Commercial Mortgage Pass-Through Certificates, Series 1998-C2, REO Account."
Any such account or accounts shall be an Eligible Account.
"REO Acquisition": With respect to any Loan, the acquisition by the
Trust Fund of REO Property related to such Loan.
"REO Acquisition Date": The date of the Trust Fund's acquisition for
federal income tax purposes of any REO Property pursuant to Section 3.09.
"REO Disposition": The sale or other disposition of the REO Property
pursuant to Section 3.18(d).
"REO Extension": As defined in Section 3.16(a).
"REO Loan": The Loan deemed to be outstanding with respect to each
REO Property. Each REO Loan shall be deemed to be outstanding for so long as
the related REO Property (i) remains part of the Trust Fund, (ii) provides for
Assumed Scheduled Payments on each Due Date therefor and (iii) otherwise has
the same terms and conditions as its predecessor Loan, including, without
limitation, with respect to the calculation of the Mortgage Rate in effect
from time to time (such terms and conditions to be applied without regard to
the default on such predecessor Loan). Each REO Loan shall be deemed to have
an initial outstanding principal balance and Stated Principal Balance equal to
the outstanding principal balance and Stated Principal Balance, respectively,
of its predecessor Loan as of the related REO Acquisition Date. All amounts
due and owing in respect of the predecessor Loan as of the related REO
Acquisition Date, including, without limitation, accrued and unpaid interest,
shall continue to be due and owing in respect of an REO Loan. All amounts
payable or reimbursable to the Servicer, the Special Servicer or the Trustee,
as applicable, in respect of the predecessor Loan as of the related REO
Acquisition Date, including, without limitation, any unpaid Special Servicing
Fees and Servicing Fees and any unreimbursed Advances, together with any
interest accrued and payable to the Servicer or the Trustee in respect of such
Advances in accordance with Section 3.03(d) or Section 4.03(d), shall continue
to be payable or reimbursable to the Servicer or the Trustee in respect of an
REO Loan. Collections in respect of each REO Loan (exclusive of amounts to be
applied to the payment of, or to be reimbursed to the Servicer or the Special
Servicer for the payment of, the costs of operating, managing and maintaining
the related REO Property) shall be treated: first, as a recovery of accrued
and unpaid Advances, Primary Servicing Fees and Servicing Fees and related
interest due the Servicer or the Trustee, as applicable; second, as a recovery
of accrued and unpaid interest on such REO Loan at the related Mortgage Rate
to but not including the Due Date in the Due Period of receipt; third, as a
recovery of principal of such REO Loan to the extent of its entire unpaid
principal balance; and fourth, in accordance with the Servicing Standard of
the Servicer, as a recovery of any other amounts due and owing in respect of
such REO Loan, including, without limitation, Yield Maintenance Charges,
Prepayment Premiums and Penalty Charges.
"REO Loan Accrual Period": With respect to any REO Loan and any Due
Date therefor, the Mortgage Interest Accrual Period with respect to the
related Loan immediately preceding such Due Date.
"REO Property": A Mortgaged Property acquired by the Special Servicer
on behalf of and in the name of the Trustee (or its nominee) for the benefit
of the Certificateholders through foreclosure, acceptance of a deed in lieu of
foreclosure or otherwise in accordance with applicable law in connection with
the default or imminent default of a Loan.
"REO Revenues": All income, rents and profits derived from the
ownership, operation or leasing of any REO Property.
"REO Status Report": A report prepared by the Servicer based on
information provided by the Special Servicer, substantially containing the
information described in Exhibit I-5 attached hereto, setting forth, among
other things, with respect to each REO Property that was included in the Trust
Fund as of the close of business on the Determination Date immediately
preceding the preparation of such report, (i) the acquisition date of such REO
Property, (ii) the amount of income collected with respect to any REO Property
net of related expenses and other amounts, if any, received on such REO
Property during the related Due Period and (iii) the value of the REO Property
based on the most recent appraisal or other valuation thereof available to the
Special Servicer as of such date of determination (including any prepared
internally by the Special Servicer).
"Request for Release": A release signed by a Servicing Officer of the
Servicer or the Special Servicer, as applicable, in the form of Exhibit F
attached hereto.
"Residual Certificate": Any Class R Certificate or Class LR
Certificate issued, authenticated and delivered hereunder.
"Residual Value Insurer": R.V.I. America Insurance Company, together
with any assignee, successor or subsequent insurer.
"Residual Value Policy": Any insurance policy issued by the Residual
Value Insurer to insure against any diminution in the value of the related
Mortgaged Properties at the maturity of the related Loan as a result of
changes in market conditions.
"Residual Value Policy Termination Event": As defined in Section
3.31(e).
"Responsible Officer": When used with respect to the initial Trustee
and Certificate Registrar, any Vice President, Assistant Vice President,
corporate trust officer or assistant corporate trust officer of the Trustee or
Certificate Registrar, as applicable, having direct responsibility for the
administration of this Agreement, and with respect to any successor Trustee or
Certificate Registrar, as applicable, any officer or assistant officer in the
corporate trust department of the Trustee or Certificate Registrar, as
applicable, or any other officer of the Trustee or Certificate Registrar, as
applicable, customarily performing functions similar to those performed by any
of the above designated officers to whom a particular matter is referred by
the Trustee or Certificate Registrar, as applicable, because of such officer's
knowledge of and familiarity with the particular subject.
"Retainage Funds": With respect to each Construction Loan, the amount
identified as the "Retainage" in the related CSFB Construction Loan Agreement.
"Revised Rate": With respect to the Loans, the increased interest
rate after the Anticipated Repayment Date (in the absence of a default) for
each applicable Loan, as calculated and as set forth in the related Loan.
"Rule 144A Global Certificate": As defined in Section 5.01(a).
"Security Agreement": With respect to any Loan, any security
agreement or equivalent instrument, whether contained in the related Mortgage
or executed separately, creating in favor of the holder of such Mortgage a
security interest in the personal property constituting security for repayment
of such Loan.
"Securities Act": The Securities Act of 1933, as amended.
"Seller-Servicer": Any of Continental Wingate Associates, Inc.,
Heartland Bank or National Consumer Cooperative Bank.
"Seller-Servicer Agreement": The Sub-Servicing Agreement dated as of
November 11, 1998, by and between the Servicer and each of the
Seller-Servicers.
"Servicer": First Union National Bank and its successor in interest
and assigns, or any successor Servicer appointed as herein provided.
"Servicer Remittance Date": With respect to any Distribution Date,
the Business Day preceding such Distribution Date.
"Servicer Remittance Report": A report prepared by the Servicer
and/or the Special Servicer in such media as may be agreed upon by the
Servicer, the Special Servicer and the Trustee containing such information
regarding the Loans as will permit the Trustee to calculate the amounts to be
distributed pursuant to Section 4.01 and to furnish statements to
Certificateholders pursuant to Section 4.02, including information on the
outstanding principal balances of each Loan specified therein, and containing
such additional information as the Servicer, the Special Servicer and the
Trustee may from time to time agree.
"Servicer Watch List": A report prepared by the Servicer
substantially containing the information described in Exhibit I-6 attached
hereto, setting forth, among other things, a description of (i) any Loan that,
as of the Determination Date immediately preceding the preparation of such
report, is in jeopardy of becoming a Specially Serviced Loan (as described in
Section 3.12(e)) and (ii) any Construction Loan as provided in Section
4.02(b).
"Servicing Account": The account or accounts created and maintained
pursuant to Section 3.03.
"Servicing Advances": All customary, reasonable and necessary "out of
pocket" costs and expenses (including attorneys' fees and expenses and fees of
real estate brokers) incurred by the Servicer in connection with the servicing
and administering of (a) a Loan in respect of which a default, delinquency or
other unanticipated event has occurred or is reasonably foreseeable or (b) an
REO Property, including, but not limited to, the cost of (i) compliance with
the Servicer's obligations set forth in Section 3.03(c), (ii) the
preservation, restoration and protection of a Mortgaged Property, (iii)
obtaining any Insurance and Condemnation Proceeds or any Liquidation Proceeds
of the nature described in clauses (i) through (iv) of the definition of
"Liquidation Proceeds," (iv) any enforcement or judicial proceedings with
respect to a Mortgaged Property, including foreclosures, (v) the operation,
leasing, management, maintenance and liquidation of any REO Property, (vi) any
Appraisal, and (vii) any "forced placed" insurance policy purchased.
"Servicing Fee": With respect to each Loan and REO Loan, the fee
payable to the Servicer pursuant to the first paragraph of Section 3.11(a).
"Servicing Fee Rate": With respect to each Loan, Specially Serviced
Loan, and REO Loan, a rate equal to 0.03% per annum computed on the basis of a
360-day year consisting of twelve 30-day months on the Stated Principal
Balance of the related Loan.
"Servicing Fee Reimbursement Amount": With respect to any of Loan
Nos.18, 20, 28 and 85 and any related Mortgage Interest Accrual Period, the
product of the related Servicing Fee Reimbursement Rate and the Stated
Principal Balance of such Loan for such Mortgage Interest Accrual Period (or
portion thereof, as applicable).
"Servicing Fee Reimbursement Rate": With respect to each of Loan
Nos.18, 20, 28 and 85, a rate of 0.05% per annum.
"Servicing Officer": Any officer and/or employee of the Servicer or
the Special Servicer involved in, or responsible for, the administration and
servicing of the Loans, whose name and specimen signature appear on a list of
servicing officers furnished by the Servicer to the Trustee and the Depositor
on the Closing Date as such list may be amended from time to time thereafter.
"Servicing Standard": As defined in Section 3.01(a).
"Servicing Transfer Event": With respect to any Loan, the occurrence
of any of the following events:
(i) a payment default shall have occurred on such Loan
(other than the Town & Country Loan) at its maturity date; or
(ii) any Monthly Payment (other than a Balloon Payment) is 60
days or more delinquent; or
(iii) the Servicer determines that a payment default (other
than, in the case of the Town & Country Loan, a default in payment of
the related Balloon Payment on the related Maturity Date) has
occurred or is imminent and is not likely to be cured by the related
Mortgagor within 60 days; or
(iv) a decree or order of a court or agency or supervisory
authority having jurisdiction in the premises in an involuntary case
under any present or future federal or state bankruptcy, insolvency
or similar law or the appointment of a conservator or receiver or
liquidator in any insolvency, readjustment of debt, marshaling of
assets and liabilities or similar proceedings, or for the winding-up
or liquidation of its affairs is entered against the related
Mortgagor; provided that if such decree or order is discharged or
stayed within 60 days of being entered, such Loan shall not be a
Specially Serviced Loan (and no Special Servicing Fees, Workout Fees
or Liquidation Fees will be payable with respect thereto); or
(v) the related Mortgagor shall file for or consent to the
appointment of a conservator or receiver or liquidator in any
insolvency, readjustment of debt, marshaling of assets and
liabilities or similar proceedings of or relating to such Mortgagor
or of or relating to all or substantially all of its property; or
(vi) the related Mortgagor shall admit in writing its
inability to pay its debts generally as they become due, file a
petition to take advantage of any applicable insolvency or
reorganization statute, make an assignment for the benefit of its
creditors, or voluntarily suspend payment of its obligations; or
(vii) the Servicer has received notice of the foreclosure
or proposed foreclosure of any lien on the related Mortgaged
Property; or
(viii) any other default has occurred which has materially
and adversely affected the value of the related Loan and has
continued unremedied for the applicable grace period specified in the
related Mortgage; or
(ix) the occurrence of a Lease Enhancement Policy
Termination Event or Residual Value Policy Termination Event; or
(x) The event described in clause (y) of the penultimate
paragraph of Section 3.31(k).
"Significant Loan": At any time, (a) any Loan (i) whose principal
balance is $20,000,000 or more at such time or (ii) that is (x) a Loan,
(y) part of a group of Crossed Loans or (z) part of a group of Loans made to
affiliated Borrowers that, in each case, in the aggregate, represents 5% or
more of the aggregate outstanding principal balance of all of the Loans at
such time or (b) any one of the ten largest Loans, (which for the purposes of
this definition shall include groups of Crossed Loans and groups of Loans made
to affiliated Borrowers) by outstanding principal balance at such time.
"Similar Law": As defined in Section 5.02(c).
"Special Servicer": Lennar Partners, Inc., a Florida corporation, or
any successor special servicer appointed as herein provided.
"Special Servicing Fee": With respect to each Specially Serviced Loan
and REO Loan, the fee payable to the Special Servicer pursuant to the first
paragraph of Section 3.11(b).
"Special Servicing Fee Rate": With respect to each Specially Serviced
Loan and each REO Loan, 0.25 % per annum computed on the basis of the Stated
Principal Balance of the related Loan and for the same period for which any
related interest payment on the related Specially Serviced Loan is computed.
"Specially Serviced Loan": As defined in Section 3.01(a).
"Startup Day": The Closing Date.
"State Tax Laws": The state and local tax laws of the States of New
York, Florida, North Carolina and Texas, as well as any state the
applicability of which to the Trust Fund or the REMICs shall have been
confirmed to the Trustee in writing either by the delivery to the Trustee of
an Opinion of Counsel to such effect (which Opinion of Counsel shall not be at
the expense of the Trustee), or by the delivery to the Trustee of a written
notification to such effect by the taxing authority of such state.
"Stated Principal Balance": With respect to any Loan (other than an
REO Loan), as of any date of determination, an amount equal to (x) the Cut-off
Date Principal Balance of such Loan, plus (y) any Mortgage Deferred Interest
added to the principal balance of such Loan on or before the end of the
immediately preceding Due Period, minus (z) the sum of:
(i) the principal portion of each Monthly Payment due on such
Loan after the Cut-off Date, to the extent received from the
Mortgagor or advanced by the Servicer or Trustee, as applicable, and
distributed to Certificateholders on or before such date of
determination;
(ii) all Principal Prepayments received with respect to such
Loan after the Cut-off Date, to the extent distributed to
Certificateholders on or before such date of determination;
(iii) the principal portion of all Insurance and Condemnation
Proceeds and Liquidation Proceeds received with respect to such Loan
after the Cut-off Date, to the extent distributed to
Certificateholders on or before such date of determination; and
(iv) any reduction in the outstanding principal balance of
such Loan resulting from a Deficient Valuation that occurred prior to
the end of the Due Period for the most recent Distribution Date.
With respect to any REO Loan, as of any date of determination, an
amount equal to (x) the Stated Principal Balance of the predecessor Loan as of
the related REO Acquisition Date, minus (y) the sum of:
(v) the principal portion of any P&I Advance made with
respect to the predecessor Loan on or after the related REO
Acquisition Date, to the extent distributed to Certificateholders on
or before such date of determination; and
(vi) the principal portion of all Insurance and Condemnation
Proceeds, Liquidation Proceeds and REO Revenues received with respect
to such REO Loan, to the extent distributed to Certificateholders on
or before such date of determination.
A Loan or an REO Loan shall be deemed to be part of the Trust Fund
and to have an outstanding Stated Principal Balance until the Distribution
Date on which the payments or other proceeds, if any, received in connection
with a Liquidation Event in respect thereof are to be distributed to
Certificateholders.
"Statement to Certificateholders": As defined in Section 4.02(a).
"Sub-Account": With respect to any Construction Loan, any one of the
sub-accounts of the Construction Loan Servicing Account established for such
Construction Loan pursuant to Section 3.25.
"Subordinate Certificate": Any Class B, Class C, Class D, Class E,
Class F, Class G, Class H, Class I or Class J Certificate.
"Sub-Servicer": Any Person with which the Servicer or the Special
Servicer has entered into a Sub-Servicing Agreement.
"Sub-Servicing Agreement": The subservicing agreements between the
Servicer or the Special Servicers, as the case may be, and any Sub-Servicer
relating to servicing and administration of Loans by such Sub-Servicer as
provided in Section 3.22.
"Substantial Completion": With respect to any Construction Loan, the
date by which (i) all work required by the Project Plans and Specifications
for such Construction Loan (except for (x) Tenant improvements, Punch List
Items and minor items that can be fully completed without materially
interfering with the use of the CVS Improvements and (y) other items that
because of the season, weather or nature of the items are not practical to
complete at the time) has been completed and (ii) the related Tenant has taken
occupancy of the CVS Improvements and commenced operation of a retail drug
store thereon.
"Successor Manager": As defined in Section 3.19(b).
"T&C Excess Interest": As defined in Section 3.31(k).
"T&C Rents": As defined in Section 3.31(k).
"Tax Returns": The federal income tax return on Internal Revenue
Service Form 1066, U.S. Real Estate Mortgage Investment Conduit Income Tax
Return, including Schedule Q thereto, Quarterly Notice to Residual Interest
Holders of REMIC Taxable Income or Net Loss Allocation, or any successor
forms, to be filed on behalf of each REMIC created hereunder due to its
classification as a REMIC under the REMIC Provisions, and Forms 1041 for the
portions of the Trust Fund intended to be treated as a grantor trust for
federal income tax purposes pursuant to Section 407 of the Code, together with
any and all other information, reports or returns that may be required to be
furnished to the Certificateholders or filed with the Internal Revenue Service
or any other governmental taxing authority under any applicable provisions of
federal or State Tax Laws.
"Tenant": With respect to any Construction Loan, the tenant under the
related Construction Loan Lease.
"The Chase Manhattan Bank": The Chase Manhattan Bank, a New York
banking corporation or other entity into which it may be merged, consolidated
or converted, or any corporation or other entity resulting from any merger,
consolidation or conversion to which it shall be a party, or any corporation
or other entity succeeding to its business.
"Town & Country Loan": As defined in Section 3.31(k).
"Transfer": Any direct or indirect transfer, sale, pledge,
hypothecation, or other form of assignment of any Ownership Interest in a
Certificate.
"Transfer Affidavit": As defined in Section 5.02(d).
"Transferee": Any Person who is acquiring by Transfer any Ownership
Interest in a Certificate.
"Transferor": Any Person who is disposing by Transfer any Ownership
Interest in a Certificate.
"Transferor Letter": As defined in Section 5.02(d).
"Treasury Rate": With respect to any Principal Prepayment made on a
Loan, the yield calculated by the linear interpolation of the yields reported
in Federal Reserve Statistical Release H.15 Selected Interest Rates (the
"Release") under the heading "U.S. government securities" and the subheading
"Treasury constant maturities" for the week ending immediately before the
related Prepayment Date, of U.S. Treasury constant maturities with maturity
dates (one longer and one shorter) most nearly approximating the Maturity Date
of such Loan (or, if such Loan is an ARD Loan, the related Anticipated
Repayment Date). If the Release is no longer published, the Servicer shall
select a comparable publication to determine the Treasury Rate in its
reasonable discretion.
"Trust Agreement": The trust agreement, dated as of June 30, 1998,
between Credit Suisse First Boston Mortgage Depositor I Corporation, Credit
Suisse First Boston Mortgage I Corporation and Commonwealth Trust Company, as
amended.
"Trust Certificate": The trust certificate representing 100% of the
beneficial interest in the trust created pursuant to the Trust Agreement.
"Trust Fund": The segregated pool of assets subject hereto,
constituting the Trust, consisting of: (i) the Loans subject to this Agreement
and all interest and principal received or receivable on or with respect to
the Loans (other than payments of principal and interest due and payable on
the Loans on or before the Cut-off Date and Principal Prepayments paid on or
before the Cut-off Date), together with all documents included in the related
Mortgage Files; (ii) such funds or assets as from time to time are deposited
in the Certificate Account, the Distribution Accounts, the Excess Interest
Distribution Account, the Yield Protection Payment Account, the Interest
Reserve Account and, if established, the REO Account; (iii) any REO Property;
(iv) the rights of the mortgagee under all Insurance Policies with respect to
the Loans and (v) the rights of the Depositor under the Mortgage Loan Purchase
Agreement.
"Trust Mortgage Loan Seller": Credit Suisse First Boston Mortgage
Finance Trust I, a trust established pursuant to a trust agreement among
Credit Suisse First Boston Mortgage Depositor I Corporation, Credit Suisse
First Boston Mortgage I Corporation and Commonwealth Trust Company, as
resident trustee.
"Trustee": The Chase Manhattan Bank, a New York banking corporation,
in its capacity as trustee and its successors in interest, or any successor
trustee appointed as herein provided.
"Trustee Exception Report": As defined in Section 2.02(e).
"Trustee Fee": The fee to be paid to the Trustee as compensation for
the Trustee's activities under this Agreement.
"Trustee Fee Rate": A rate equal to 0.002% per annum computed on the
basis of a 360-day year consisting of twelve 30-day months on the Stated
Principal Balance of the related Loan.
"UCC": The Uniform Commercial Code, as enacted in each applicable
state.
"UCC Financing Statement": A financing statement executed and filed
pursuant to the UCC, as in effect in the relevant jurisdiction.
"Uncertificated Intermediate-Tier Interests": Any of the Class MA1,
Class MA2, Class MB, Class MC, Class MD, Class ME, Class MF, Class MG,
Class MH, Class MI and Class MJ Uncertificated Interests.
"Uncertificated Lower-Tier Interests": Any of the Lower-Tier REMIC
regular interests in the Preliminary Statement.
"Uncovered Prepayment Interest Shortfall": As to any Distribution
Date and any Loan as to which a Principal Prepayment is made, the amount, if
any, by which the Prepayment Interest Shortfall, if any, for such Loan as of
such Distribution Date exceeds the sum of (i) the Servicing Fee attributable
to such Loan (other than a Specially Serviced Loan and other than any Loans
described in the proviso in the last paragraph of Section 3.11(a) in
connection with a Principal Prepayment described therein) and (ii) the
investment income accruing on the related Principal Prepayment (other than any
Principal Prepayment described in the proviso in the last paragraph of Section
3.11(a)) and due to the Servicer for the period from the date of such
prepayment to the end of the related Due Period (or, in the case of a
Specially Serviced Mortgage Loan, for the period from the date of such
prepayment to the Due Date immediately preceding such Distribution Date).
"Uncovered Prepayment Interest Shortfall Amount": As to any
Distribution Date, the amount, if any, by which (i) the sum of the Uncovered
Prepayment Interest Shortfalls, if any, for such Distribution Date exceeds
(ii)the aggregate amount of Prepayment Interest Excesses, if any, on all
Loans for such Distribution Date.
"Underwritten Debt Service Coverage Ratio": With respect to any Loan,
the ratio of (i) Underwritten Net Cash Flow produced by the related Mortgaged
Property to (ii) the aggregate amount of the Monthly Payments due for the
twelve-month period immediately following the Cut-off Date.
"Underwritten Net Cash Flow": With respect to any Loan, the estimated
annual revenue derived from the use and operation of the related Mortgaged
Property, less estimated annual expenses, including operating expenses (such
as utilities, administrative expenses, repairs and maintenance, management
fees and advertising), fixed expenses (such as insurance and real estate
taxes) and replacement reserves and any other reserves or deduction from
revenue taken into account in connection with the origination of such Loan.
"Underwriter": Credit Suisse First Boston Corporation.
"United Artists Loan": Loan No. 19.
"United Artists Loan Interest Advance Amount": With respect to any
Distribution Date, one-sixth of the United Artists Loan Scheduled Interest
Payment that is payable on the immediately succeeding Due Date for the United
Artists Loan (net of the related Servicing Fees and Primary Servicing Fees).
"United Artists Loan Swap Agreement": The swap transaction
confirmation dated November 24, 1998 between First Union National Bank and
First Union National Bank RC 6578 with respect to the payment of scheduled
interest under the United Artists Loan.
"United Artists Loan Scheduled Interest Payment": With respect to the
United Artists Loan, that portion of the scheduled semi-annual payment of
principal and/or interest on such Loan that relates to interest and that is
payable by the related Mortgagor under the related Note and applicable law,
without regard to any acceleration of principal of such Loan by reason of
default thereunder or any modification, waiver or amendment of such Loan
granted or agreed to by the Servicer or the Special Servicer pursuant to
Section 3.20.
"Unpaid Interest Shortfall Amount": As to the first Distribution Date
and any Class of Regular Certificates, zero. As to any Distribution Date after
the first Distribution Date and any Class of Regular Certificates, the amount,
if any, by which the sum of the Interest Shortfall Amounts for such Class for
prior Distribution Dates exceeds the sum of the amounts distributed on such
Class on prior Distribution Dates in respect of such Interest Shortfall
Amounts.
"Upper-Tier Distribution Account": The segregated account or accounts
created and maintained by the Trustee, pursuant to Section 3.04(b) in trust
for the Certificateholders, which shall be entitled "The Chase Manhattan Bank,
as Trustee, in trust for the registered Holders of Credit Suisse First Boston
Mortgage Securities Corp., Commercial Mortgage Pass-Through Certificates,
Series 1998-C2, Upper-Tier Distribution Account." Any such account or accounts
shall be an Eligible Account.
"Upper-Tier REMIC": One of the three separate REMICs comprising the
Trust Fund, the assets of which consist of the Uncertificated
Intermediate-Tier Interests and such amounts as shall from time to time be
held in the Upper-Tier Distribution Account.
"U.S. Person": A citizen or resident of the United States, a
corporation or partnership (including an entity treated as a corporation or
partnership for federal income tax purposes) created or organized in, or under
the laws of, the United States or any State thereof or the District of
Columbia (other than a partnership that is not treated as a United States
person under any applicable Treasury regulations), or an estate whose income
from sources without the United States is includible in gross income for
United States federal income tax purposes regardless of its connection with
the conduct of a trade or business within the United States, or a trust if a
court within the United States is able to exercise primary supervision over
the administration of the trust and one or more United States persons have
authority to control all substantial decisions of the trust. Notwithstanding
the preceding sentence, to the extent provided in regulations, certain trusts
in existence on August 20, 1996 and treated as United States persons prior to
such date that elect to continue to be so treated also shall be considered
U.S. Persons.
"Voting Rights": The portion of the voting rights of all of the
Certificates, which is allocated to any Certificate. At all times during the
term of this Agreement and for any date of determination, the Voting Rights
shall be allocated among the various Classes of Certificateholders as follows:
(i) 2% in the case of the Class A-X Certificates, and (ii) in the case of any
other Class of Regular Certificates a percentage equal to the product of 98%
and a fraction, the numerator of which is equal to the aggregate Certificate
Balance of such Class, in each case, determined as of the Distribution Date
immediately preceding such date of determination, and the denominator of which
is equal to the aggregate Certificate Balance of the Regular Certificates,
each determined as of the Distribution Date immediately preceding such date of
determination. None of the Class V, Class R or Class LR Certificates will be
entitled to any Voting Rights. For purposes of determining Voting Rights, the
Certificate Balance of any Class shall be deemed to be reduced by allocation
of the Collateral Support Deficit to such Class. Voting Rights allocated to a
Class of Certificateholders shall be allocated among such Certificateholders
in proportion to the Percentage Interests evidenced by their respective
Certificates.
"Water Street Participation": The tranche A participation interest in
Loan No. 2.
"Water Street Participation Documents": With respect to the Water
Street Participation, (x) an original or a true and complete copy of the
related participation agreement and (y) an original or a true and complete
copy of the related participation certificate, if any.
"Weighted Average Net Mortgage Rate": As to any Distribution Date,
the average, as of such Distribution Date, of the Net Mortgage Pass-Through
Rates of the Loans, weighted by the Stated Principal Balances thereof.
"Withheld Amounts": As defined in Section 3.30(a).
"Workout Fee": The fee paid to the Special Servicer with respect to
each Corrected Loan.
"Workout Fee Rate": as defined in Section 3.11(b).
"Yield Maintenance Charge": With respect to any Loan, the yield
maintenance charge set forth in the related Loan. If a Yield Maintenance
Charge becomes due for any particular Loan, the Servicer shall be required to
follow the terms and provisions contained in the applicable Loan Documents;
provided however, that if the related Loan Documents do not specify which U.S.
Treasury obligations are to be used in determining the discount rate or the
reinvestment yield to be applied in such calculation, the Servicer shall be
required to use those U.S. Treasury obligations that will generate the lowest
discount rate or reinvestment yield for the purposes thereof. Accordingly, if
either no U.S. Treasury obligation, or more than one U.S. Treasury obligation,
coincides with the term over which the Yield Maintenance Charge is to be
calculated (which, depending on the applicable Loan Documents, is based on the
remaining average life of the Loan or the actual term remaining through the
Maturity Date), the Servicer shall use the U.S. Treasury obligations whose
reinvestment yield is the lowest, with such yield being based on the bid price
for such issue as published in The Wall Street Journal on the date that is
fourteen (14) days prior to the date that the Yield Maintenance Charge becomes
due and payable (or, if such bid price is not published on that date, the next
preceding date on which such bid price is so published) and converted to a
monthly compounded nominal yield. The monthly compounded nominal yield ("MEY")
is derived from the reinvestment yield or discount rate and shall be defined
as MEY = (12 x [{(1+"BEY"/2)^(1/6}-1]) x 100 where BEY is defined as the U.S.
Treasury Reinvestment Yield in decimal, not percentage, form, and 1/6 is the
exponential power to which a portion of the equation is raised. For example,
using a BEY of 5.50%, the MEY = (12 x [{(1 + 0.055/2) (0.16667}-1]) x 100,
where 0.055 is the decimal version of the percentage 5.50%, and 0.16667 is the
decimal version of the exponential power. (The MEY calculated in the above
example is 5.438%.)
"Yield Protection Payment" As to any Distribution Date, any
Additional Collateral Loan and any related Additional Collateral Prepayment
Amount (and, if applicable, Loan No. 14 and any Donatelli Loan Special
Prepayment) prepaid in the Due Period preceding such Distribution Date, the
amount, if any, by which (a) the greater of (i) one percent of the sum of such
Additional Collateral Prepayment Amount (and, if applicable, any Donatelli
Loan Special Prepayment) and (ii) the Yield Maintenance Charge required to be
paid by the related Borrower in connection with such prepayment exceeds (b)
that portion, if any, of the Yield Maintenance Charge required to be paid by,
and actually collected from, the related Borrower in connection with such
prepayment. The portions of any Yield Protection Payment allocable to (x) any
Class of Certificates receiving an Additional Collateral Prepayment or a
Donatelli Loan Special Prepayment (a "Regular Yield Protection Payment
Amount") and (y) the Class A-x Certificates (a "Class A-x Yield Protection
Payment Amount") shall be so allocated in the same manner as Yield Maintenance
charges are allocated. Yield Protection Payments are assets of the Trust Fund,
but shall not be assets of any REMIC formed hereunder.
"Yield Protection Payment Account": The trust account or accounts
created and maintained as a separate trust account or accounts by the Trustee
pursuant to Section 3.04(d), which shall be entitled "The Chase Manhattan
Bank, as Trustee, in trust for Holders of Credit Suisse First Boston Mortgage
Securities Corp., Commercial Mortgage Pass-Through Certificates, series
1998-C2, Yield Protection Payment Account" and which shall be an Eligible
Account. The Yield Protection Payment Account shall not be an asset of any
REMIC formed hereunder.
"Yield Protection Payment Advance": As defined in Section 4.03(g).
"Yield Rate": With respect to any Loan, the yield rate set forth in
the related Loan documents.
SECTION 1.02. Certain Calculations. Unless otherwise specified
herein, for purposes of determining amounts with respect to the Certificates
and the rights and obligations of the parties hereto, the following provisions
shall apply:
(i) All calculations of interest with respect to the Loans
(other than the Actual/360 Loans) and of Advances provided for herein
shall be made on the basis of a 360-day year consisting of twelve
30-day months. All calculations of interest with respect to the
Actual/360 Loans and Advances provided for herein shall be made as
set forth in such Loan with respect to the calculation of interest
accruing at the related Mortgage Rate.
(ii) Any Loan payment is deemed to be received on the date
such payment is actually received by the Servicer, the Special
Servicer or the Trustee; provided, however, that for purposes of
calculating distributions on the Certificates, (i) any voluntary
Principal Prepayment made on a date other than the related Due Date
and in connection with which the Servicer has collected interest
thereon through the end of the related Mortgage Interest Accrual
Period shall be deemed to have been made, and the Servicer shall
apply such Principal Prepayment to reduce the outstanding principal
balance of the related Loan as if such Principal Prepayment had been
received, on the following Due Date and (ii) all other Principal
Prepayments with respect to any Loan are deemed to be received on the
date they are applied to reduce the outstanding principal balance of
such Loan.
(iii) Any reference to the Certificate Balance of any Class of
Certificates on or as of a Distribution Date shall refer to the
Certificate Balance of such Class of Certificates on such
Distribution Date after giving effect to (a) any distributions made
on such Distribution Date pursuant to Section 4.01(a), (b) any
Collateral Support Deficit allocated to such Class on such
Distribution Date pursuant to Section 4.04 and (c) the addition of
any Certificate Deferred Interest allocated to such Class and added
to such Certificate Balance pursuant to Section 4.06(b) (except that
no such increase in Certificate Balance pursuant to this clause (c)
shall count for the purposes of determining Voting Rights or the
identity of the Controlling Class).
SECTION 1.03. Loan Identification Convention.
Loans shall be identified in this Agreement by reference to their
respective loan numbers, as set forth under the column heading "Loan #" in
Annex A to the Prospectus Supplement.
SECTION 1.04. Construction Loan Servicing Account Convention.
Funds on deposit in the Construction Loan Servicing Account and
allocated to a given Construction Loan and a given Sub-Account shall be
referred to herein as being on deposit in such Sub-Account.
[End of Article I]
<PAGE>
ARTICLE II
CONVEYANCE OF LOANS;
ORIGINAL ISSUANCE OF CERTIFICATES
---------------------------------
SECTION 2.01. Conveyance of Loans.
-------------------
(a) The Depositor, concurrently with the execution and delivery
hereof, does hereby assign, sell, transfer, set over and otherwise convey to
the Trustee, without recourse, for the benefit of the Certificateholders all
the right, title and interest of the Depositor, including any security
interest therein for the benefit of the Depositor, in, to and under (i) the
Loans identified on the Mortgage Loan Schedule, (ii) the Trust Certificate,
(iii) the Mortgage Loan Purchase AgreementS and (iv) all other assets included
or to be included in the Trust Fund. Such assignment includes all interest and
principal received or receivable on or with respect to the Loans and the Trust
Certificate (other than (x) payments of principal and interest due and payable
on the Loans on or before the Cut-off Date and Principal Prepayments paid on
or before the Cut-off Date, (y) with respect to the United Artists Loan,
interest accrued thereon on or prior to November1, 1998 and (z) with respect
to the Trust Certificate, any assets other than the Loans and the collections
with respect thereto due and payable on or before the Cut-off Date and
Principal Prepayments paid on or before the Cut-off Date). The transfer of the
Loans, the Trust Certificate and the related rights and property accomplished
hereby is absolute and, notwithstanding Section 10.07, is intended by the
parties to constitute a sale.
(b) In connection with the Depositor's assignment pursuant to
subsection (a) above, the Depositor shall direct, and hereby represents and
warrants that it has directed each Mortgage Loan Seller pursuant to the
related Mortgage Loan Purchase Agreement to deliver to and deposit with, or
cause to be delivered to and deposited with, the Trustee or a Custodian
appointed thereby (with a copy to the Servicer and the Special Servicer), on
or before the Closing Date, the Mortgage File for each Loan so assigned. If a
Mortgage Loan Seller cannot deliver, or cause to be delivered as to any Loan,
the original Note, such Mortgage Loan Seller shall deliver a copy or duplicate
original of such Note, together with an affidavit in the form attached as
Exhibit K hereto, certifying that the original thereof has been lost or
destroyed.
If the applicable Mortgage Loan Seller cannot deliver, or cause to be
delivered, as to any Loan, any of the documents and/or instruments referred to
in clauses (ii), (iv), (vi), (viii), (xi) and (xii) of the definition of
"Mortgage File," with evidence of recording thereon, solely because of a delay
caused by the public recording office where such document or instrument has been
delivered for recordation, the delivery requirements of the related Mortgage
Loan Purchase Agreement and this Section 2.01(b) shall be deemed to have been
satisfied and such non-delivered document or instrument shall be deemed to have
been included in the Mortgage File, provided that a photocopy of such
non-delivered document or instrument (certified by such Mortgage Loan Seller to
be a true and complete copy of the original thereof submitted for recording) is
delivered to the Trustee or a Custodian and the Servicer on or before the
Closing Date, and either the original of such non-delivered document or
instrument, or a photocopy thereof (certified by the appropriate county
recorder's office to be a true and complete copy of the original thereof
submitted for recording), with evidence of recording thereon, is delivered to
the Trustee or a Custodian within 120 days of the Closing Date, which period may
be extended up to two times, in each case for an additional period of 45 days
provided that such Mortgage Loan Seller, as certified in writing to the Trustee
prior to each such 45-day extension, is in good faith attempting to obtain from
the appropriate county recorder's office such original or photocopy.
If the applicable Mortgage Loan Seller cannot deliver, or cause to be
delivered, as to any Loan, any of the documents and/or instruments referred to
in clauses (ii), (iv), (vi), (viii), (xi) and (xii) of the definition of
"Mortgage File," with evidence of recording thereon, for any other reason,
including, without limitation, that such non-delivered document or instrument
has been lost, the delivery requirements of the related Mortgage Loan Purchase
Agreement and this Section 2.01(b) shall be deemed to have been satisfied and
such non-delivered document or instrument shall be deemed to have been included
in the Mortgage File if a photocopy of such non-delivered document or instrument
(with evidence of recording thereon and certified by the appropriate county
recorder's office to be a true and complete copy of the original thereof
submitted for recording) is delivered to the Trustee or a Custodian appointed
thereby and to the Servicer on or before the Closing Date.
Neither the Trustee nor any Custodian shall be liable for any failure
by either Mortgage Loan Seller or the Depositor to comply with the delivery
requirements of the related Mortgage Loan Purchase Agreement and this Section
2.01(b). Notwithstanding the foregoing, if either Mortgage Loan Seller fails to
deliver a UCC-2 or UCC-3 on or before the Closing Date as required above solely
because the related UCC-1 has not been returned to such Mortgage Loan Seller by
the applicable filing office, such Mortgage Loan Seller shall not be in breach
of its obligations with respect to such delivery, provided that the Mortgage
Loan Seller promptly forwards such UCC-1 to the Servicer (with a copy to the
Trustee) upon its return, together with the related original UCC2 or UCC3 in a
form appropriate for filing.
(c) At the expense of the CSFB Mortgage Loan Seller, the Servicer
shall, as to each Loan, use its best efforts to promptly (and in any event no
later than the later of (i) 90 days after the Closing Date and (ii) 60 days from
receipt of documents in recordable form, including, without limitation, all
necessary recording and filing information) cause to be submitted for recording
or filing, as the case may be, each assignment referred to in clauses (ii),
(iii), (iv), (v) and (vii) of the definition of "Mortgage File" and each UCC-2
or UCC-3 referred to in clause (xi) of the definition of "Mortgage File." Each
such assignment shall reflect that it should be returned by the public recording
office to the Servicer following recording, and each such UCC-2 or UCC-3 shall
reflect that the file copy thereof should be returned to the Servicer following
filing. If any such document or instrument is lost or returned unrecorded or
unfiled because of a defect therein, the Servicer shall prepare or cause to be
prepared a substitute therefor or cure such defect, as the case may be, and
thereafter the Servicer shall upon receipt thereof cause the same to be duly
recorded or filed, as appropriate. Within 30 days following request therefor,
the Depositor shall reimburse the Servicer for all of its costs and expenses
incurred in performing its obligation under this Section 2.01(c). The Trustee
shall provide the Servicer with recording and filing information as to recorded
Mortgages, Assignments of Lease and UCC financing statements promptly after the
Trustee receives them from the related recording offices.
(d) All documents and records in the Depositor's or the applicable
Mortgage Loan Seller's possession relating to the Loans (including financial
statements, operating statements and any other information provided by the
respective Mortgagor from time to time) that are not required to be a part of a
Mortgage File in accordance with the definition thereof shall be delivered to
the Servicer within 30 days of the Closing Date and shall be held by the
Servicer on behalf of the Trustee in trust for the benefit of the
Certificateholders.
(e) In connection with the Depositor's assignment pursuant to
subsection (a) above, the Depositor shall deliver, and hereby represents and
warrants that it has delivered, to the Trustee and the Servicer, on or before
the Closing Date, a fully executed original counterpart of the Mortgage Loan
Purchase Agreement, as in full force and effect, without amendment or
modification, on the Closing Date.
(f) The Depositor shall use its best efforts to require that,
promptly after the Closing Date, but in all events within three Business Days
after the Closing Date, the CSFB Mortgage Loan Seller shall cause all funds on
deposit in escrow accounts maintained with respect to the Loans in the name of
the CSFB Mortgage Loan Seller or any other name to be transferred to the
Servicer (or a Sub-Servicer at the direction of the Servicer) for deposit into
Servicing Accounts.
SECTION 2.02. Acceptance by Trustee.
---------------------
(a) The Trustee, by the execution and delivery of this Agreement,
acknowledges receipt by it or a Custodian on its behalf, subject to the
provisions of Sections 2.01 and 2.02(d), to any exceptions noted on the
Trustee Exception Report, and to the further review provided for in Section
2.02(b), of the documents specified in clauses (i) through (v), (viii), (ix),
(xi), (xii) and (xiii) of the definition of "Mortgage File" with respect to
each Loan, of a fully executed original counterpart of the applicable Mortgage
Loan Purchase Agreement and of all other assets included in the Trust Fund, in
good faith and without notice of any adverse claim, and declares that it or a
Custodian on its behalf holds and will hold such documents and any other
documents delivered or caused to be delivered by the applicable Mortgage Loan
Seller constituting the Mortgage Files, and that it holds and will hold such
other assets included in the Trust Fund, in trust for the exclusive use and
benefit of all present and future Certificateholders.
(b) Within 60 days of the Closing Date, the Trustee or a Custodian on
its behalf shall review each of the Loan documents delivered or caused to be
delivered by the applicable Mortgage Loan Seller constituting the Mortgage
Files; and, promptly following such review (but in no event later than 90 days
after the Closing Date), the Trustee shall, subject to Sections 2.01 and
2.02(d), certify in writing to each of the Depositor, the Servicer, the
Special Servicer and the applicable Mortgage Loan Seller that, as to each Loan
listed in the Mortgage Loan Schedule (other than any Loan paid in full or any
Loan specifically identified in any exception report annexed thereto as not
being covered by such certification), (i) all documents specified in clauses
(i) through (v), (viii), (ix), (xi), (xii) and (xiii) of the definition of
"Mortgage File" are in its possession, (ii) all documents delivered or caused
to be delivered by such Mortgage Loan Seller constituting the Mortgage Files
have been reviewed by it or by a Custodian on its behalf and appear regular on
their face and appear to relate to such Loan, and (iii) based on such
examination and only as to the foregoing documents, the information set forth
in the Mortgage Loan Schedule with respect to the items specified in clauses
(i), (iv)(a), (vi), (viii)(a) and (viii)(c) of the definition of "Mortgage
Loan Schedule" is correct.
(c) The Trustee or a Custodian on its behalf shall review each of the
Loan documents received after the Closing Date; and, on or about every 90 days
until the second anniversary of the Closing Date, the Trustee shall, subject to
Sections 2.01 and 2.02(d), certify in writing to each of the Depositor, the
Servicer, the Special Servicer and the CSFB Mortgage Loan Seller that, as to
each Loan listed on the Mortgage Loan Schedule (other than any Loan as to which
a Liquidation Event has occurred or any Loan specifically identified in any
exception report annexed thereto as not being covered by such certification),
(i) all documents specified in clauses (i) through (v), (viii), (xiv), (ix),
(xi), (xii), (xiii) and (xvii) of the definition of "Mortgage File" are in its
possession, (ii) it or a Custodian on its behalf has received either a recorded
original of each of the assignments specified in clause (iii) and clause (v) of
the definition of "Mortgage File," insofar as an unrecorded original thereof had
been delivered or caused to be delivered by the applicable Mortgage Loan Seller
or a copy of such recorded original certified by the applicable public recording
office to be true and complete, (iii) all Loan documents received by it or any
Custodian have been reviewed by it or by such Custodian on its behalf and appear
regular on their face and appear to relate to such Loan and (iv) based on the
examinations referred to in subsection (b) above and this subsection (c) and
only as to the foregoing documents, the information set forth in the Mortgage
Loan Schedule with respect to the items specified in clauses (i), (iv)(a), (vi),
(viii)(a) and (viii)(c) of the definition of "Mortgage Loan Schedule" is
correct.
(d) It is herein acknowledged that neither the Trustee nor any
Custodian is under any duty or obligation (i) to determine whether any of the
documents specified in clauses (vi), (vii), (x), (xiv), (xv), (xvi), (xvii) and
(xviii) of the definition of "Mortgage File" exist or are required to be
delivered by the Depositor, a Mortgage Loan Seller or any other Person or (ii)
to inspect, review or examine any of the documents, instruments, certificates or
other papers relating to the Loans delivered to it to determine that the same
are valid, legal, effective, in recordable form, genuine, enforceable,
sufficient or appropriate for the represented purpose or that they are other
than what they purport to be on their face.
(e) If, in the process of reviewing the Mortgage Files or at any time
thereafter, the Trustee or any Custodian finds any document or documents
constituting a part of a Mortgage File not to have been properly executed or, to
contain information that does not conform in any material respect with the
corresponding information set forth in the Mortgage Loan Schedule or to be
defective on its face (each, a "Defect" in the related Mortgage File), the
Trustee shall promptly so notify the Depositor, the Servicer, the Special
Servicer and the CSFB Mortgage Loan Seller (and in no event later than 90 days
after the Closing Date), by providing a written report (the "Trustee Exception
Report") setting forth for each affected Loan, with particularity, the nature of
such Defect.
(f) Upon the second anniversary of the Closing Date, the Trustee
shall deliver a final exception report as to any remaining Defects or required
Loan documents that are not in its possession, whereupon, within 90 days, the
CSFB Mortgage Loan Seller shall either: (i) cause such Defect or Loan document
deficiency to be cured; (ii) cause to be delivered to the Trustee an Opinion
of Counsel to the effect that such Defect or Loan document deficiency will not
have a material adverse effect upon the value of the related Loan or the
Certificateholders' interest therein; or (iii) repurchase the related Loan
pursuant to Section 2.03.
SECTION 2.03. Representations, Warranties and Covenants of the
Depositor; CSFB Mortgage Loan Seller's Repurchase of Loans for Defects in
Mortgage Files and Breaches of Representations and Warranties.
(a) The Depositor hereby represents and warrants that:
(i) The Depositor is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware, and the
Depositor has taken all necessary corporate action to authorize the
execution, delivery and performance of this Agreement by it, and has the
power and authority to execute, deliver and perform this Agreement and
all the transactions contemplated hereby, including, but not limited to,
the power and authority to sell, assign and transfer the Loans in
accordance with this Agreement;
(ii) Assuming the due authorization, execution and delivery of this
Agreement by each other party hereto, this Agreement and all of the
obligations of the Depositor hereunder are the legal, valid and binding
obligations of the Depositor, enforceable against the Depositor in
accordance with the terms of this Agreement, except as such enforcement
may be limited by bankruptcy, insolvency, reorganization or other similar
laws affecting the enforcement of creditors' rights generally, and by
general principles of equity (regardless of whether such enforceability
is considered in a proceeding in equity or at law);
(iii) The execution and delivery of this Agreement and the
performance of its obligations hereunder by the Depositor will not
conflict with any provisions of any law or regulations to which the
Depositor is subject, or conflict with, result in a breach of or
constitute a default under any of the terms, conditions or provisions of
the certificate of incorporation or the by-laws of the Depositor or any
indenture, agreement or instrument to which the Depositor is a party or
by which it is bound, or any order or decree applicable to the Depositor,
or result in the creation or imposition of any lien on any of the
Depositor's assets or property, which would materially and adversely
affect the ability of the Depositor to carry out the transactions
contemplated by this Agreement; the Depositor has obtained any consent,
approval, authorization or order of any court or governmental agency or
body required for the execution, delivery and performance by the
Depositor of this Agreement;
(iv) There is no action, suit or proceeding pending or, to the
Depositor's knowledge, threatened against the Depositor in any court or
by or before any other governmental agency or instrumentality which would
materially and adversely affect the validity of the Loans or the ability
of the Depositor to carry out the transactions contemplated by this
Agreement;
(v) The Depositor is the lawful owner of the Loans with the full
right to transfer the Loans to the Trust Fund and upon the assignment of
the Loans to the Trust, the Loans will be validly transferred to the
Trust;
(vi) Following consummation of the conveyance of the Loans by the
Depositor to the Trustee, the Depositor shall take no action inconsistent
with the Trust Fund's ownership of the Loans, and if a third party,
including a potential purchaser of the Loans, should inquire, the
Depositor shall promptly indicate that the Loans have been sold and shall
claim no ownership interest therein; and
(vii) Each Loan is a "qualified mortgage" within the meaning of Code
Section 860G(a)(3) (but without regard to the rule in Treasury Section
1.860G-2(f)(2) that treats a defective obligation as a qualified
mortgage).
(b) If any Certificateholder, the Servicer, the Special Servicer or
the Trustee discovers or receives notice of a Defect in any Mortgage File or a
breach of any representation or warranty set forth in, or required to be made
with respect to a Loan by CSFB Mortgage Loan Seller pursuant to, the
applicable Mortgage Loan Purchase Agreement (a "Breach"), which Defect or
Breach, as the case may be, materially and adversely affects the value of any
Loan or the interests of the Certificateholders therein, such
Certificateholder, the Servicer, the Special Servicer or the Trustee, as
applicable, shall give prompt written notice of such Defect or Breach, as the
case may be, to the Depositor, the Servicer, the Special Servicer and the CSFB
Mortgage Loan Seller and shall request that the CSFB Mortgage Loan Seller, not
later than the earlier of 90 days from the CSFB Mortgage Loan Seller's receipt
of such notice or CSFB Mortgage Loan Seller's discovery of such Breach, cure
such Defect or Breach, as the case may be, in all material respects or
repurchase the affected Loan at the applicable Purchase Price or in conformity
with the related Mortgage Loan Purchase Agreement. Any Defect or Breach which
causes any Loan not to be a "qualified mortgage" (within the meaning of
Section 860G(a)(3) of the Code) shall be deemed to materially and adversely
affect the interest of Certificateholders therein. If the affected Loan is to
be repurchased, the Trustee shall designate the Certificate Account as the
account into which funds in the amount of the Purchase Price are to be
deposited by wire transfer.
In connection with any repurchase of a Loan contemplated by this
Section 2.03, the Trustee, the Servicer and the Special Servicer shall each
tender to the CSFB Mortgage Loan Seller, upon delivery to each of the Trustee,
the Servicer and the Special Servicer of a trust receipt executed by the CSFB
Mortgage Loan Seller, all portions of the Mortgage File and other documents
pertaining to such Loan possessed by it, and each document that constitutes a
part of the Mortgage File that was endorsed or assigned to the Trustee, shall
be endorsed or assigned, as the case may be, to the CSFB Mortgage Loan Seller
in the same manner as provided in Section 7 of the related Mortgage Loan
Purchase Agreement.
Section 7 of the Mortgage Loan Purchase Agreement provides the sole
remedy available to the Certificateholders, or the Trustee on behalf of the
Certificateholders, respecting any Defect in a Mortgage File or any Breach of
any representation or warranty set forth in or required to be made pursuant to
Section 2 of the Mortgage Loan Purchase Agreement.
If the CSFB Mortgage Loan Seller defaults on its obligations to
repurchase any Loan as contemplated by Section 2.03(b), the Trustee shall
promptly notify the Certificateholders, the Rating Agencies, the Servicer and
the Special Servicer of such default. The Trustee shall enforce the
obligations of CSFB Mortgage Loan Seller under Section 7 of the related
Mortgage Loan Purchase Agreement. Such enforcement, including, without
limitation, the legal prosecution of claims, shall be carried out in such
form, to such extent and at such time as if it were, in its individual
capacity, the owner of the affected Loan(s). The Trustee shall be reimbursed
for the reasonable costs of such enforcement: first, from a specific recovery
of costs, expenses or attorneys' fees against the defaulting CSFB Mortgage
Loan Seller; second, pursuant to Section 3.05(a)(vii) out of the related
Purchase Price, to the extent that such expenses are a specific component
thereof; and third, if at the conclusion of such enforcement action it is
determined that the amounts described in clauses first and second are
insufficient, then pursuant to Section 3.05(a)(viii) out of general
collections on the Loans on deposit in the Certificate Account.
SECTION 2.04. Execution of Certificates.
-------------------------
Subject to Sections 2.01 and 2.02, the Trustee hereby acknowledges
the assignment to it of the Loans and the delivery to it or a Custodian on its
behalf of the Mortgage Files and a fully executed original counterpart of the
related Mortgage Loan Purchase Agreement, together with the assignment to it
of all other assets included in the Trust Fund. Concurrently with such
assignment and delivery and in exchange therefor, the Trustee acknowledges the
issuance of the Uncertificated Lower-Tier Interests and Intermediate-Tier
Interests, to the Depositor and, pursuant to the written request of the
Depositor executed by an officer of the Depositor, the execution,
authentication and delivery of the Class LR and Class V Certificates to or
upon the order of the Depositor, in exchange for the Loans, receipt of which
is hereby acknowledged, and immediately thereafter, the Trustee acknowledges
that, pursuant to the written request of the Depositor executed by an officer
of the Depositor, it has executed and caused the Authenticating Agent to
authenticate and to deliver to or upon the order of the Depositor, in exchange
for the Uncertificated Lower-Tier Interests and Intermediate-Tier Interests,
the Regular Certificates and the Class R Certificates, and the Depositor
hereby acknowledges the receipt by it or its designees, of all such
Certificates.
SECTION 2.05. Trust Certificate.
-----------------
On the Closing Date, the Trustee shall take the following actions:
(a) Upon receipt of a certificate of Credit Suisse First Boston
Mortgage I Corporation, as trustee for the Mortgage Trust substantially in the
form attached as Exhibit G hereto, the Trustee shall deliver to Credit Suisse
First Boston Mortgage I Corporation, as trustee for the Mortgage Trust, an
order substantially in the form of Exhibit H hereto, directing it to liquidate
and dissolve the Mortgage Trust Fund and to file a certificate of dissolution.
(b) From and after the liquidation and dissolution of the Mortgage
Trust Fund, the Loans therein shall be subject to the terms hereunder as if
such Loans had been deposited directly into the Trust Fund by the Depositor.
(c) The Trustee shall deliver to Credit Suisse First Boston Mortgage
I Corporation, as trustee for the Mortgage Trust, a letter substantially in
the form of Exhibit J hereto, to transfer to the Depositor all assets of the
Mortgage Trust (other than any Loans and collections with respect thereto
conveyed to the Trustee pursuant to Section 2.01(a)).
[End of Article II]
<PAGE>
ARTICLE III
ADMINISTRATION AND
SERVICING OF THE TRUST FUND
---------------------------
SECTION 3.01. Servicer to Act as Servicer; Special Servicer to Act as
Special Servicer; Administration of the Loans.
(a) Each of the Servicer and the Special Servicer shall diligently
service and administer the Loans (and, with respect to the Special Servicer, any
REO Properties) it is obligated to service pursuant to this Agreement on behalf
of the Trust Fund and in the best interests of and for the benefit of the
Certificateholders (as determined by the Servicer or the Special Servicer, as
the case may be, in its good faith and reasonable judgment) in accordance with
applicable law, the terms of the respective Loans or Specially Serviced Loans,
and, to the extent consistent with the foregoing, the terms of this Agreement
and, to the extent consistent with the foregoing, in accordance with the higher
of the following standards of care: (1) the same manner in which, and with the
same care, skill, prudence and diligence with which, the Servicer or Special
Servicer, as the case may be, services and administers similar commercial or
multifamily mortgage loans for other third-party portfolios, giving due
consideration to the customary and usual standards of practice of prudent
institutional multifamily or commercial mortgage lenders servicing their own
mortgage loans and (2) the same care, skill, prudence and diligence with which
the Servicer or Special Servicer, as the case may be, services and administers
similar commercial or multifamily mortgage loans owned by the Servicer or
Special Servicer, in either case exercising reasonable business judgment and
with a view to the maximization, on a present value basis (discounting at the
related Mortgage Rate), of timely recovery of principal and interest on the
Loans or Specially Serviced Loans, as applicable, but without regard to: (i) any
relationship that the Servicer or the Special Servicer, as the case may be, or
any Affiliate thereof may have with the related Mortgagor or any other party to
this Agreement; (ii) the ownership of any Certificate by the Servicer or the
Special Servicer, as the case may be, or any Affiliate thereof; (iii) the
Servicer's obligation to make Advances; (iv) the Servicer's or Special
Servicer's, as the case may be, right to receive compensation for its services
hereunder or with respect to any particular transaction; and (v) the Servicer's
or the Special Servicer's ownership, servicing or management of any other
mortgage loans or mortgaged properties, except that Loan Nos. 2 and 5 shall be
serviced with a view toward maximizing recovery (i) in the case of Loan No. 2,
to the holders of both tranche A and tranche B of such Loan and (ii) in the case
of Loan No. 5, to the holders of both Note A and Note B of such Loan (the
foregoing, collectively referred to as the "Servicing Standard").
Without limiting the foregoing, subject to Section 3.21, the Special
Servicer shall be obligated to service and administer (i) any Loans as to which
a Servicing Transfer Event has occurred and is continuing (each such Loan, a
"Specially Serviced Loan"), (ii) any REO Properties and (iii) any Construction
Loans to the extent provided in Section 3.25, regardless of whether any
Servicing Transfer Event has occurred. Notwithstanding the foregoing, the
Servicer shall continue to make all calculations, and prepare, or cause to be
prepared by the Special Servicer and delivered to the Trustee, all reports to
the Trustee required hereunder with respect to the Specially Serviced Loans as
if no Servicing Transfer Event had occurred and with respect to the REO
Properties (and the related REO Loans) as if no REO Acquisition had occurred,
and to render such incidental services with respect to such Specially Serviced
Loan and REO Properties as are specifically provided for herein; provided,
however, that the Servicer shall not be liable for failure to comply with such
duties insofar as such failure results from a failure of the Special Servicer to
provide sufficient information to the Servicer to comply with such duties or a
failure of the Special Servicer to prepare and deliver to the Servicer reports
required hereunder to be delivered by the Special Servicer to the Servicer. Each
Loan that becomes a Specially Serviced Loan shall continue as such until
satisfaction of the conditions specified in Section 3.21(a). Without limiting
the foregoing, subject to Section 3.21, the Servicer shall be obligated to
service and administer all Loans which are not Specially Serviced Loans;
provided, however, that the Special Servicer shall make the inspections, use its
reasonable best efforts to collect the statements and shall prepare the reports
in respect of the related Mortgaged Properties with respect to Specially
Serviced Loans in accordance with Section 3.12.
(b) Subject only to the Servicing Standard and the terms of this
Agreement and of the respective Loans, the Servicer and the Special Servicer
each shall have full power and authority, acting alone, to do or cause to be
done any and all things in connection with such servicing and administration
which it may deem necessary or desirable. Without limiting the generality of the
foregoing, each of the Servicer and the Special Servicer, in its own name, is
hereby authorized and empowered by the Trustee and obligated to execute and
deliver, on behalf of the Certificateholders and the Trustee or any of them,
with respect to each Loan it is obligated to service under this Agreement, any
and all financing statements, continuation statements and other documents or
instruments necessary to maintain the lien created by the related Mortgage or
other security document in the related Mortgage File on the related Mortgaged
Property and related collateral; subject to Section 3.20, any and all
modifications, waivers, amendments or consents to or with respect to any
documents contained in the related Mortgage File; and any and all instruments of
satisfaction or cancellation, or of partial or full release or discharge, and
all other comparable instruments. Subject to Section 3.10, the Trustee shall
furnish, or cause to be furnished, to the Servicer or the Special Servicer any
limited powers of attorney and other documents necessary or appropriate to
enable the Servicer or the Special Servicer, as the case may be, to carry out
its servicing and administrative duties hereunder; provided, however, that the
Trustee shall not be held liable for any negligence with respect to, or misuse
of, any such power of attorney by the Servicer or the Special Servicer.
(c) The relationship of each of the Servicer and the Special Servicer
to the Trustee under this Agreement is intended by the parties to be that of
an independent contractor and not that of a joint venturer, partner or agent.
SECTION 3.02. Collection of Loan Payments.
(a) Each of the Servicer and the Special Servicer shall make reasonable
efforts, subject to Section 3.31(k) with respect to the Town & Country Loan,
to collect all payments called for under the terms and provisions of the Loans
it is obligated to service hereunder, and shall follow such collection
procedures as are consistent with this Agreement (including, without
limitation, the Servicing Standard). Consistent with the foregoing, the
Servicer or the Special Servicer each may in its discretion waive any Penalty
Charge in connection with any delinquent payment on a Loan it is obligated to
service hereunder.
(b) All amounts collected on any Loan in the form of payments from
Mortgagors, Insurance and Condemnation Proceeds or Liquidation Proceeds shall be
applied to amounts due and owing under the related Note and Mortgage (including
any modifications to either of them) in accordance with the express provisions
of such Note and Mortgage (unless a payment default exists under such Loan and
the related Note and Mortgage permit application in the order and priority
determined by the lender) and, in the absence of such express provisions, shall
be applied (after payment to the Servicer, any Seller-Servicer, the Special
Servicer and/or the Trustee for any related Servicing Fees, Primary Servicing
Fees, Special Servicing Fees and Trustee's Fees and the application to any P&I
Advances, Servicing Advances and interest on Advances from such Loan): first, as
a recovery of accrued and unpaid interest on such Loan at the related Mortgage
Rate (less portions thereof payable to the Servicer, Special Servicer, Trustee
or, if applicable, the related Seller-Servicer) in effect from time to time to
but not including the Due Date in the Due Period of receipt; second, as a
recovery of principal of such Loan; and third, to the payment of Prepayment
Premiums and Yield Maintenance Charges. Notwithstanding the terms of any Loan,
the Servicer shall not be entitled to the payment of any Penalty Charge in
excess of outstanding interest on Advances made with respect to such Loan,
except to the extent that (i) all reserves then required to be funded pursuant
to the terms of such Loan have been so funded, (ii) all payments of principal
and interest then due on such Loan have been paid and (iii) all related
operating expenses, if applicable, have been paid to the related Lock-Box or
reserved for pursuant to the related Lock-Box Agreement. In no event shall any
collections on any ARD Loan or on the Town & Country Loan be allocated to the
payment of Excess Interest until all amounts due, or to become due, under such
ARD Loan or the Town & Country Loan have been paid in full. Amounts collected on
any REO Loan shall be deemed to be applied in accordance with the definition
thereof.
(c) If the Servicer or Special Servicer receives, or receives notice
from the related Borrower that it will be receiving, Excess Interest in any
Due Period, the Servicer or Special Servicer, as applicable, shall promptly
notify the Trustee thereof in writing.
SECTION 3.03.Collection of Taxes, Assessments and Similar Items;
Servicing Accounts.
(a) The Servicer shall establish and maintain one or more accounts
(the "Servicing Accounts"), into which all Escrow Payments shall be deposited
and retained, and shall administer such Servicing Accounts in accordance with
the related Loan Documents. Each Servicing Account shall be an Eligible Account.
Funds on deposit in the Servicing Accounts may be invested in Permitted
Investments in accordance with the provisions of Section 3.06. Withdrawals of
amounts so deposited from a Servicing Account may be made only to: (i) effect
payment of real estate taxes, assessments, Insurance Policy premiums, ground
rents (if applicable) and other items for which funds have been escrowed in the
Servicing Accounts; (ii) reimburse the Servicer or the Trustee for any Servicing
Advances; (iii) refund to Mortgagors any sums as may be determined to be
overages; (iv) pay interest to Mortgagors on balances in the Servicing Account,
if required by applicable law or the terms of the related Loan and as described
below or, if not so required, to the Servicer; (v) withdraw amounts deposited in
error; (vi) clear and terminate the Servicing Accounts at the termination of
this Agreement in accordance with Section 9.01; and (vii) pay the Servicer, as
additional servicing compensation in accordance with Section 3.11(a), interest
and investment income earned in respect of amounts relating to the Trust Fund
held in the Servicing Accounts as provided in Section 3.06(b) (but only to the
extent of the Net Investment Earnings with respect to the Servicing Accounts for
any period from any Distribution Date to the immediately succeeding P&I Advance
Date) to the extent not required by law or the terms of the related Loan to be
paid to the Mortgagors.
(b) The Special Servicer, in the case of REO Loans and Specially
Serviced Loans, and the Servicer, in the case of all other Loans, shall maintain
accurate records with respect to each related Mortgaged Property reflecting the
status of real estate taxes, assessments and other similar items that are or may
become a lien thereon and the status of Insurance Policy premiums and any ground
rents payable in respect thereof. The Special Servicer, in the case of REO Loans
and Specially Serviced Loans, and the Servicer, in the case of all other Loans,
shall obtain all bills for the payment of such items (including renewal
premiums) and shall effect payment thereof from the REO Account or the Servicing
Accounts, and, if such amounts are insufficient to pay such items in full, the
Servicer shall make a Servicing Advance prior to the applicable penalty or
termination date, as allowed under the terms of the related Loan.
Notwithstanding anything to the contrary in the preceding sentence, with respect
to Loans that do not provide for escrows for the payment of taxes and
assessments, the Servicer shall make a Servicing Advance for the payment of such
items upon the earlier of (x)30 days after the date such payments first become
due and (y) five Business Days before the scheduled date of foreclosure of any
lien arising from nonpayment of such items (which Servicing Advance shall in
each case be so applied by the Servicer at the written direction of the Special
Servicer in the case of Specially Serviced Loans and REO Loans). In no event
shall the Servicer or the Special Servicer be required to make any such
Servicing Advance that would, if made, be a Nonrecoverable Servicing Advance. To
the extent that a Loan does not require a Mortgagor to escrow for the payment of
real estate taxes, assessments, Insurance Policy premiums, ground rents (if
applicable) and similar items, the Special Servicer, in the case of Specially
Serviced Loans and REO Loans, and the Servicer, in the case of all other Loans,
shall use reasonable efforts consistent with the Servicing Standard to require
that payments in respect of such items be made by the Mortgagor at the time they
first become due.
(c) In accordance with the Servicing Standard and for all Loans, the
Servicer shall make a Servicing Advance with respect to each related Mortgaged
Property (including any REO Property) of all such funds as are necessary for the
purpose of effecting the payment of (i) real estate taxes, assessments and other
similar items that are or may become a lien thereon, including related penalty
or interest charges, (ii) ground rents (if applicable), (iii) premiums on
Insurance Policies, (iv) operating, leasing, managing and liquidation expenses
for REO Properties and (v) environmental inspections and remediations, if any,
in each instance if and to the extent monies in the Servicing Accounts are
insufficient to pay such item when due and the related Mortgagor has failed to
pay such item on a timely basis, provided that the Servicer shall not be
required to make any such advance that would, if made, constitute a
Nonrecoverable Servicing Advance; and provided further that with respect to the
payment of taxes and assessments, the Servicer shall not be required to make any
such advance until the earlier of (i) five Business Days after the Servicer has
received confirmation that such item has not been paid and (ii) with respect to
Loans that provide for escrows for the payment of taxes and assessments, the
earlier of (A)30 days after the date such payments first become due and
(B) five Business Days before the scheduled date of foreclosure of any lien
arising from nonpayment of such items.
The Special Servicer shall give the Servicer and the Trustee not less
than five Business Days' notice before the date on which the Servicer is
required to make any Servicing Advance with respect to a given Loan or REO
Property; provided, however, that only two Business Days' notice shall be
required in respect of Servicing Advances required to be made on an urgent or
emergency basis (which may include, without limitation, Servicing Advances
required to make tax or insurance payments). In addition, the Special Servicer
shall provide the Servicer and the Trustee with such information in its
possession as the Servicer or the Trustee, as applicable, may reasonably request
to enable the Servicer or the Trustee, as applicable, to determine whether a
requested Servicing Advance would constitute a Nonrecoverable Servicing Advance.
Any request by the Special Servicer that the Servicer make a Servicing Advance
shall be deemed to be a determination by the Special Servicer that such
requested Servicing Advance is not a Nonrecoverable Servicing Advance, and the
Servicer shall be entitled to conclusively rely on such determination. On the
fourth Business Day before each Distribution Date, the Special Servicer shall
report to the Servicer the Special Servicer's determination as to whether any
Servicing Advance previously made with respect to a Specially Serviced Loan or
REO Loan is a Nonrecoverable Servicing Advance. The Servicer shall be entitled
to conclusively rely on such a determination.
All such Servicing Advances shall be reimbursable in the first instance
from related collections from the Mortgagors and further as provided in Section
3.05. No costs incurred by the Servicer or the Special Servicer in effecting the
payment of real estate taxes, assessments and, if applicable, ground rents on or
in respect of the Mortgaged Properties shall, for purposes hereof, including,
without limitation, calculating monthly distributions to Certificateholders, be
added to the unpaid principal balances of the related Loans, notwithstanding
that the terms of such Loans so permit. If the Servicer fails to make any
required Servicing Advance as and when due to the extent a Responsible Officer
of the Trustee has been notified of such failure in writing by the Servicer,
Special Servicer or Depositor, the Trustee shall make such Servicing Advance
pursuant to Section 7.05.
(d) In connection with its recovery of any Servicing Advance out of
the Certificate Account pursuant to clauses (iv) or (v) of Section 3.05(a) or
from a Servicing Account pursuant to Section 3.03(a)(ii), each of the Servicer
and the Trustee, as the case may be, shall be entitled to receive, out of any
amounts then on deposit in the Certificate Account, interest at the
Reimbursement Rate in effect from time to time, accrued on the amount of such
Servicing Advance from and including the date made to, but not including, the
date of reimbursement. The Servicer shall reimburse itself or the Trustee, as
the case may be, for any outstanding Servicing Advance as soon as practically
possible after funds available for such purpose are deposited in the Certificate
Account.
(e) To the extent an operations and maintenance plan is required to
be established and executed pursuant to the terms of a Loan, the Servicer or,
with respect to Specially Serviced Loans, the Special Servicer shall request
from the Mortgagor written confirmation thereof within a reasonable time after
the later of the Closing Date and the date as of which such plan is required to
be established or completed. To the extent any repairs, capital improvements,
actions or remediations are required to have been taken or completed pursuant to
the terms of the Loan, the Servicer or, with respect to Specially Serviced
Loans, the Special Servicer shall request from the Mortgagor written
confirmation of such actions and remediations within a reasonable time after the
later of the Closing Date and the date as of which such action or remediations
are required to be or to have been taken or completed. To the extent a Mortgagor
fails to promptly respond to any inquiry described in this Section 3.03(e), the
Servicer (with respect to Loans that are not Specially Serviced Loans) shall
determine whether the related Mortgagor has failed to perform its obligations
under the related Loan and report any such failure to the Special Servicer
within a reasonable time after the date as of which such operations and
maintenance plan is required to be established or executed or the date as of
which such actions or remediations are required to be or to have been taken or
completed.
SECTION 3.04. The Certificate Account, Distribution Accounts, Excess
Interest Distribution Account and Yield Protection Payment Account.
(a) The Servicer shall establish and maintain, or cause to be
established and maintained, the Certificate Account, into which the Servicer
shall deposit or cause to be deposited on a daily basis (and in no event later
than the Business Day following receipt of available funds), except as otherwise
specifically provided herein, the following payments and collections received
after the Cut-off Date (other than (x) payments of principal and interest on the
Loans due and payable on or before the Cut-off Date and (y) with respect to the
United Artists Loan, interest accrued thereon on or prior to November 1, 1998)
and payments (other than Principal Prepayments) received by it on or prior to
the Cut-off Date but allocable to a period subsequent thereto (in each case
other than with respect to payments and collections relating to the Construction
Loans, which payments and collections are to be deposited into the Construction
Loan Servicing Account pursuant to Section 3.25(l)):
(i) all payments on account of principal, including Principal
Prepayments, on the Loans;
(ii) (x) all payments on account of interest on the Loans,
net of (A) the Servicing Fees and Primary Servicing Fees (in each
case net of any amount utilized to offset Prepayment Interest
Shortfalls), (B) Penalty Charges (net of any amount thereof utilized
to offset interest on Advances), (C) Prepayment Premiums, (D) Excess
Interest and (E) Yield Maintenance Charges and (y) all Servicing Fee
Reimbursement Amounts; and
(iii) all Insurance and Condemnation Proceeds and Liquidation
Proceeds received in respect of any Loan or REO Property (other than
Liquidation Proceeds that are to be deposited in the Lower-Tier
Distribution Account pursuant to Section 9.01);
(iv) any amounts required to be transferred from the REO
Account pursuant to Section 3.16(c);
(v) any amounts required to be deposited by the Servicer
pursuant to Section 3.06 in connection with losses incurred with
respect to Permitted Investments of funds held in the Certificate
Account;
(vi) any amounts required to be deposited by the Servicer or
the Special Servicer pursuant to Section 3.07(b) in connection with
losses resulting from a deductible clause in a blanket hazard policy;
(vii) any amounts required to be deposited by the Servicer
pursuant to the last paragraph of Section 3.11(a) as a reduction in
the compensation to the Servicer to cover Prepayment Interest
Shortfalls;
(viii) any Prepayment Interest Excess to which the Servicer is
not entitled as provided in Section 3.11(a); and
(ix) the Loan Servicing Remittance Amount withdrawn from the
Construction Loan Servicing Account pursuant to Section 3.25(m)(i).
The foregoing requirements for deposit in the Certificate Account
shall be exclusive, it being understood and agreed that actual payments from
Mortgagors in the nature of Escrow Payments, charges for beneficiary
statements or demands, assumption fees, modification fees, extension fees,
amounts collected for mortgagor checks returned for insufficient funds or
other amounts that the Servicer or Special Servicer is entitled to retain as
additional servicing compensation pursuant to Section 3.11 need not be
deposited by the Servicer in the Certificate Account. If the Servicer shall
deposit in the Certificate Account any amount not required to be deposited
therein, it may at any time withdraw such amount from the Certificate Account.
Within one Business Day of receipt of any of the foregoing amounts
with respect to any Specially Serviced Loan, the Special Servicer shall remit
such amounts to the Servicer for deposit into the Certificate Account in
accordance with the second preceding paragraph. Any amounts received by the
Special Servicer with respect to an REO Property shall be deposited into the
REO Account and remitted to the Servicer for deposit into the Certificate
Account pursuant to Section 3.16(c).
(b) The Trustee shall establish and maintain the Distribution
Accounts in trust for the benefit of the Certificateholders. The Trustee shall
make deposits in and withdrawals from the Distribution Accounts in accordance
with the terms of this Agreement. The Servicer shall deliver to the Trustee
each month on or before 3:00 p.m., New York City time, on the P&I Advance
Date, for deposit in the Lower-Tier Distribution Account, that portion of the
Available Distribution Amount (calculated without regard to clauses (a) (iv),
(a)(v), (a)(vi) and (c) of the definition thereof) for the related
Distribution Date then on deposit in the Certificate Account.
The Servicer shall, as and when required hereunder, deliver to the
Trustee for deposit in the Lower-Tier Distribution Account:
(i) any P&I Advances required to be made by the Servicer in
accordance with Section 4.03 (or, if the Trustee succeeds to the
Servicer's obligations hereunder, Section 7.05);
(ii) any Liquidation Proceeds paid by the Servicer in
connection with the purchase of all of the Loans and any REO
Properties in the Trust Fund pursuant to Section 9.01 (exclusive of
that portion thereof required to be deposited in the Certificate
Account pursuant to Section 9.01);
(iii) any Yield Maintenance Charges or Prepayment Premiums; and
(iv) any other amounts required to be so delivered for
deposit in the Lower-Tier Distribution Account pursuant to any
provision of this Agreement.
The Trustee shall, upon receipt, deposit in the Lower-Tier
Distribution Account any and all amounts received by the Trustee that are
required by the terms of this Agreement to be deposited therein.
On each Distribution Date, the Trustee shall deposit in the
Intermediate-Tier Distribution Account and from the Intermediate-Tier
Distribution Account to the Upper-Tier Distribution Account an aggregate
amount of immediately available funds equal to the Lower-Tier Distribution
Amount and the amount of any Prepayment Premiums and Yield Maintenance Charges
for such Distribution Date allocated in payment of the Uncertificated
Lower-Tier Interests as specified in Sections 4.01(b) and 4.01(d),
respectively.
(c) Prior to the Servicer Remittance Date relating to any Due Period
in which Excess Interest is received, the Trustee shall establish and maintain
the Excess Interest Distribution Account in the name of the Trustee in trust
for the benefit of the Holders of the Class V Certificates. The Excess
Interest Distribution Account shall be established and maintained as an
Eligible Account. On or before each Servicer Remittance Date, the Servicer
shall remit to the Trustee for deposit in the Excess Interest Distribution
Account an amount equal to the Excess Interest received during the related Due
Period. On each Distribution Date, the Trustee shall withdraw the Excess
Interest from the Excess Interest Distribution Account for distribution
pursuant to Section 4.01(f). Following the distribution of Excess Interest to
Holders of the Class V Certificates on the first Distribution Date after which
no Loans remain outstanding that pursuant to their terms could pay Excess
Interest, the Trustee shall terminate the Excess Interest Distribution
Account.
(d) Prior to the Servicer Remittance Date relating to any Due Period
in which an Additional Collateral Prepayment Amount is prepaid, the Trustee
shall establish and maintain the Yield Protection Payment Account in the name
of the Trustee in trust for the benefit of the Holders of the Regular
Certificates. The Yield Protection Payment Account shall be established and
maintained as an Eligible Account. On or before each Servicer Remittance Date,
as required by Section 4.03(g), the Servicer shall remit to the Trustee for
deposit in the Yield Protection Payment Account the Yield Protection Payment
Advance, if any, for the related Distribution Date. On each Distribution Date,
the Trustee shall withdraw the Yield Protection Payment from the Yield
Protection Payment Account for distribution pursuant to Section 4.01(k).
Following the distribution of the Class A-X Yield Protection Payment Amount to
Holders of the Class A-X Certificates and the distribution of the Regular
Yield Protection Payment Amount to Holders of the applicable Class of Regular
Certificates, in each case on the first Distribution Date after which all
Additional Collateral has been released to the Borrowers under the Additional
Collateral Loans or collected by the Servicer as Principal Prepayments, the
Trustee shall terminate the Yield Protection Payment Account.
(e) Funds on deposit in the Certificate Account may be invested only
in Permitted Investments in accordance with the provisions of Section 3.06.
Funds on deposit in the Upper-Tier Distribution Account, Intermediate-Tier
Distribution Account and the Lower-Tier Distribution Account shall not be
invested. As of the Closing Date, the Certificate Account shall be located at
the offices of the Servicer. The Servicer shall give notice to the Trustee,
the Special Servicer and the Depositor of any new location of the Certificate
Account prior to any change thereof. As of the Closing Date, the Upper-Tier
Distribution Account, Intermediate-Tier Distribution Account, the Lower-Tier
Distribution Account, the Excess Interest Distribution Account and the Yield
Protection Payment Account shall be located at the offices of the Trustee. The
Trustee shall give notice to the Servicer and the Depositor of any new
location of the Upper-Tier Distribution Account, Intermediate-Tier
Distribution Account, the Lower-Tier Distribution Account, the Excess Interest
Distribution Account or the Yield Protection Payment Account, prior to any
change thereof.
SECTION 3.05. Permitted Withdrawals from the Certificate Account and
the Distribution Accounts.
(a) The Servicer may, from time to time, make withdrawals from the
Certificate Account for any of the following purposes:
(i) to remit to the Trustee for deposit in the Lower-Tier
Distribution Account the amount required to be remitted pursuant to
the first paragraph of Section 3.04(b) and the amount to be applied
to make P&I Advances pursuant to Section 4.03(a);
(ii) to pay (x) to itself, unpaid Servicing Fees (net of any
such amounts required to offset Prepayment Interest Shortfalls
pursuant to Section 3.11(a)) and any Primary Servicing Fees to which
it is entitled pursuant to Section 3.11(a), (y) to any
Seller-Servicer entitled thereto, the related Primary Servicing Fee,
and (z) to the Special Servicer, unpaid Special Servicing Fees,
Liquidation Fees and Workout Fees in respect of each Loan, Specially
Serviced Loan and REO Loan, as applicable, the Servicer's rights, any
Seller-Servicer's rights and the Special Servicer's rights to payment
pursuant to this clause (ii) with respect to any Loan or REO Loan, as
applicable, being limited to amounts received on or in respect of
such Loan (whether in the form of payments, Liquidation Proceeds or
Insurance and Condemnation Proceeds) or such REO Loan (whether in the
form of REO Revenues, Liquidation Proceeds or Insurance and
Condemnation Proceeds) that are allocable as a recovery of interest
thereon;
(iii) to reimburse itself or the Trustee, as applicable, for
unreimbursed P&I Advances, the Servicer's or the Trustee's right to
reimburse itself pursuant to this clause (iii) being limited to
amounts received which represent Late Collections of interest (net of
the related Servicing Fees) on and principal of the particular Loans
and REO Loans with respect to which such P&I Advances were made;
(iv) to reimburse itself or the Trustee, as applicable, for
unreimbursed Servicing Advances, the Servicer's or the Trustee's
respective rights to receive payment pursuant to this clause (iv)
with respect to any Loan or REO Property being limited to, as
applicable, related payments, Liquidation Proceeds, Insurance and
Condemnation Proceeds and REO Revenues;
(v) to reimburse itself or the Trustee, as applicable, for
Nonrecoverable Advances out of general collections on the Loans and
REO Properties;
(vi) at such time as it reimburses itself or the Trustee, as
applicable, for (a) any unreimbursed P&I Advance pursuant to clause
(iii) above, to pay itself or the Trustee, as applicable, any
interest accrued and payable thereon in accordance with Section
4.03(d), (b) any unreimbursed Servicing Advances pursuant to clause
(iv) above or pursuant to Section 3.03(a)(ii), to pay itself or the
Trustee, as the case may be, any interest accrued and payable thereon
in accordance with Section 3.03(d) or (c) any Nonrecoverable Advances
pursuant to clause (v) above, to pay itself or the Trustee, as the
case may be, any interest accrued and payable thereon;
(vii) to reimburse itself, the Special Servicer, the Depositor
or the Trustee, as the case may be, for any unreimbursed expenses
reasonably incurred by such Person in respect of any Breach or Defect
giving rise to a repurchase obligation of the CSFB Mortgage Loan
Seller under Section 7 of the related Mortgage Loan Purchase
Agreement, including, without limitation, any expenses arising out of
the enforcement of the repurchase obligation, each such Person's
right to reimbursement pursuant to this clause (vii) with respect to
any Loan being limited to that portion of the Purchase Price paid for
such Loan that represents such expense in accordance with clause (iv)
of the definition of Purchase Price;
(viii) in accordance with Section 2.03(e), to reimburse itself
or the Special Servicer, as the case may be, out of general
collections on the Loans and REO Properties for any unreimbursed
expense reasonably incurred by such Person in connection with the
enforcement of the CSFB Mortgage Loan Seller's obligations under
Section 7 of the related Mortgage Loan Purchase Agreement, but only
to the extent that such expenses are not reimbursable pursuant to
clause (vii) above or otherwise;
(ix) to pay itself, as additional servicing compensation in
accordance with Section 3.11(a), (a) interest and investment income
earned in respect of amounts relating to the Trust Fund held in the
Certificate Account as provided in Section 3.06(b) (but only to the
extent of the Net Investment Earnings with respect to the Certificate
Account for any period from any Distribution Date to the immediately
succeeding P&I Advance Date) (net of any such amounts required to
offset Prepayment Interest Shortfalls pursuant to Section 3.11(a))
and any Primary Servicing Fees to which it is entitled pursuant to
Section 3.11(a), (b) Penalty Charges on any Loan other than a
Specially Serviced Loan, but only to the extent (x) collected from
the related Mortgagor and (y) in excess of outstanding interest on
Advances made with respect to such Loan, and to the extent that all
amounts then due and payable with respect to such Loan have been paid
and (c) all Prepayment Interest Excess in connection with the receipt
of Principal Prepayments (except to the extent otherwise provided in
Section 3.11(a)) or Insurance and Condemnation Proceeds; and to pay
the Special Servicer, as additional servicing compensation in
accordance with the last paragraph of Section 3.11(b), Penalty
Charges on any Specially Serviced Loan (but only to the extent
collected from the related Mortgagor and to the extent that all
amounts then due and payable with respect to such Specially Serviced
Loan have been paid);
(x) to recoup any amounts deposited in the Certificate Account in
error;
(xi) to pay itself, the Special Servicer, the Depositor or
any of their respective directors, officers, employees and agents, as
the case may be, any amounts payable to any such Person pursuant to
Sections 6.03(a) or 6.03(b);
(xii) to pay for (a) the cost of the Opinions of Counsel
contemplated by Section 3.32 to the extent payable out of the Trust
Fund, (b) the cost of any Opinion of Counsel contemplated by Sections
10.01(a) or 10.01(c) in connection with an amendment to this
Agreement requested by the Trustee or the Servicer, which amendment
is in furtherance of the rights and interests of Certificateholders
and (c) the cost of obtaining the REO Extension contemplated by
Section 3.16(a);
(xiii) to pay out of general collections on the Loans and REO
Properties any and all federal, state and local taxes imposed on any
REMIC created hereunder or either of their assets or transactions,
together with all incidental costs and expenses, to the extent that
none of the Servicer, the Special Servicer or the Trustee is liable
therefor;
(xiv) to reimburse the Servicer and the Special Servicer out
of general collections on the Loans and REO Properties for expenses
incurred by and reimbursable to them by the Trust Fund;
(xv) to pay itself, the Special Servicer or the CSFB Mortgage
Loan Seller, as the case may be, with respect to each Loan, if any,
previously purchased by such Person pursuant to this Agreement, all
amounts received thereon subsequent to the date of purchase;
(xvi) to reimburse the Special Servicer for the cost of any
environmental testing performed at the Special Servicer's direction
pursuant to the last sentence of Section 3.09(c); and
(xvii) to clear and terminate the Certificate Account at the
termination of this Agreement pursuant to Section 9.01.
The Servicer shall keep and maintain separate accounting records, on
a loan-by-loan and property-by-property basis when appropriate, for the
purpose of justifying any withdrawal from the Certificate Account.
(b) The Trustee, may, from time to time, make withdrawals from the
Lower-Tier Distribution Account for any of the following purposes:
(i) to make deposits of the Lower-Tier Distribution Amount
pursuant to Section 4.01(b) and the amount of any Prepayment Premium
and Yield Maintenance Charges distributable pursuant to Section
4.01(d) in the Upper-Tier Distribution Account; and
(ii) to pay the Trustee accrued but unpaid Trustee Fees;
(iii) to pay to the Trustee or any of its Affiliates,
directors, officers, employees and agents, as the case may be, any
amounts payable or reimbursable to any such Person pursuant to
Section 3.32(p), 6.03(a), 6.03(b) or 8.05(b);
(iv) to pay for the cost of the Opinion of Counsel
contemplated by Section 10.01(c) in connection with any amendment to
this Agreement requested by the Trustee; and
(v) to clear and terminate the Lower-Tier Distribution
Account and Intermediate-Tier Distribution Account at the termination
of this Agreement pursuant to Section 9.01.
(c) The Trustee may make withdrawals from the Upper-Tier Distribution
Account for any of the following purposes:
(i) to make distributions to Certificateholders (other than
Holders of the Class LR Certificates) on each Distribution Date
pursuant to Section 4.01 or 9.01, as applicable; and
(ii) to clear and terminate the Upper-Tier Distribution
Account at the termination of this Agreement pursuant to Section
9.01.
(d) Notwithstanding anything herein to the contrary, with respect to
any Loan, (i) if amounts on deposit in the Certificate Account, the Lower-Tier
Distribution Account and the Intermediate-Tier Distribution Account are not
sufficient to pay the full amount of the Servicing Fee listed in
Section 3.05(a)(ii) and the Trustee Fee listed in Section 3.05(b)(ii), then
the Trustee Fee shall be paid in full prior to the payment of any Servicing
Fees payable under Section 3.05(a)(ii) and (ii) if amounts on deposit in the
Certificate Account are not sufficient to reimburse the full amount of
Advances listed in Sections 3.05(a)(iii), (iv), (v) and (vi), then
reimbursements shall be paid first to the Trustee and then to the Servicer.
(e) Notwithstanding anything herein to the contrary, under no
circumstances shall (i) funds in any account other than the Yield Protection
Payment Account be applied to Yield Protection Payments or (ii) a Yield
Protection Payment Advance be deemed to be an Advance reimbursable pursuant to
Section 3.05(a).
SECTION 3.06. Investment of Funds in the Certificate Account,
Servicing Accounts, Cash Collateral Accounts, Lock-Box Accounts, Policy Escrow
Accounts, the Interest Reserve Account and the REO Account.
(a) The Servicer may direct any depository institution maintaining
the Certificate Account, any Servicing Account, any Cash Collateral Account,
any Lock-Box Account, any Policy Escrow Account and the Interest Reserve
Account, and the Special Servicer may direct any depository institution
maintaining the REO Account (any of the foregoing accounts, for purposes of
this Section 3.06, an "Investment Account"), to invest (or if such depository
institution is the Servicer or the Special Servicer, as applicable, it may
itself invest) the funds held therein solely in one or more Permitted
Investments bearing interest or sold at a discount, and maturing, unless
payable on demand, (i) no later than the Business Day immediately preceding
the next succeeding date on which such funds are required to be withdrawn from
such account pursuant to this Agreement, if a Person other than the depository
institution maintaining such account is the obligor thereon and (ii) no later
than the date on which such funds are required to be withdrawn from such
account pursuant to this Agreement, if the depository institution maintaining
such account is the obligor thereon. All such Permitted Investments shall be
held to maturity, unless payable on demand. Any investment of funds in an
Investment Account shall be made in the name of the Trustee (in its capacity
as such). Funds on deposit in the Excess Interest Distribution Account, Yield
Protection Payment Account and Distribution Accounts shall remain uninvested.
The Servicer (in the case of any Investment Account other than the
REO Account) or the Special Servicer (in the case of the REO Account), on
behalf of the Trustee, shall maintain continuous possession of any Permitted
Investment of amounts in such accounts that is either (i) a "certificated
security," as such term is defined in the UCC or (ii) other property in which
a secured party may perfect its security interest by possession under the UCC
or any other applicable law. Possession of any such Permitted Investment by
the Servicer or the Special Servicer shall constitute possession by the
Trustee, as secured party, for purposes of Section 9-305 of the UCC and any
other applicable law. In the event amounts on deposit in an Investment Account
are at any time invested in a Permitted Investment payable on demand, the
Servicer (in the case of any Investment Account other than the REO Account) or
the Special Servicer (in the case of the REO Account) shall:
(i) consistent with any notice required to be given
thereunder, demand that payment thereon be made on the last day such
Permitted Investment may otherwise mature hereunder in an amount
equal to the lesser of (a) all amounts then payable thereunder and
(b) the amount required to be withdrawn on such date; and
(ii) demand payment of all amounts due thereunder promptly
upon determination by the Servicer, the Special Servicer or the
Trustee, as the case may be, that such Permitted Investment would not
constitute a Permitted Investment in respect of funds thereafter on
deposit in the Investment Account.
(b) Interest and investment income realized on funds deposited in
each of the Certificate Account, the Interest Reserve Account, any Cash
Collateral Account, any Lock-Box Account and any Servicing Account, to the
extent of the Net Investment Earnings, if any, with respect to such account
for each period from any Distribution Date to the immediately succeeding P&I
Advance Date shall be for the sole and exclusive benefit of the Servicer and
shall be subject to its withdrawal, or withdrawal at its direction, in
accordance with Section 3.03(a), 3.05(a), 3.05(b) or 3.05(c), as the case may
be. Interest and investment income realized on funds deposited in any Policy
Escrow Account shall be used to pay any interest on Advances made with respect
to, or any other expenses of the Trust Fund allocable to, the related Loan,
and the Servicer shall not be entitled to any such interest or investment
income. Interest and investment income realized on funds deposited in the REO
Account, to the extent of the Net Investment Earnings, if any, with respect to
such account for each period from any Distribution Date to the immediately
succeeding P&I Advance Date, shall be for the sole and exclusive benefit of
the Trust Fund and shall be subject to its withdrawal in accordance with
Section 3.16(c). If any loss shall be incurred in respect of any Permitted
Investment on deposit in any of the Certificate Account, any Cash Collateral
Account, any Lock-Box Account, any Servicing Account or the REO Account, the
Servicer (in the case of the Certificate Account, any Cash Collateral Account,
any Lock-Box Account and any Servicing Account) or the Special Servicer (in
the case of the REO Account) shall deposit therein, no later than the P&I
Advance Date, without right of reimbursement, the amount of the Net Investment
Loss, if any, with respect to such account for the period from the immediately
preceding Distribution Date to such P&I Advance Date. The Servicer shall not
be liable for any loss incurred in respect of any Permitted Investment on
deposit in any Policy Escrow Account.
(c) Except as otherwise expressly provided in this Agreement, if any
default occurs in the making of a payment due under any Permitted Investment,
or if a default occurs in any other performance required under any Permitted
Investment, the Trustee may and, subject to Section 8.02, upon the request of
Holders of Certificates entitled to a majority of the Voting Rights allocated
to any Class shall, take such action as may be appropriate to enforce such
payment or performance, including the institution and prosecution of
appropriate proceedings.
Notwithstanding the investment of funds held in the Certificate
Account pursuant to this Section 3.06, for purposes of calculating the
Available Distribution Amount, the amounts so invested shall be deemed to
remain on deposit in such account.
SECTION 3.07. Maintenance of Insurance Policies; Errors and Omissions
and Fidelity Coverage.
(a) The Servicer as to Loans that are not Specially Serviced Loans
and the Special Servicer as to Specially Serviced Loans shall use their
respective reasonable best efforts to cause the Mortgagor to maintain, to the
extent required by the terms of the related Note and Mortgage, or if the
Mortgagor does not so maintain, shall itself maintain, for each Loan any
Insurance Policy coverage as is required under the related Mortgage (to the
extent that the Trustee has an insurable interest and such Insurance Policy
coverage is available at commercially reasonable rates, as determined by the
Servicer or the Special Servicer, as applicable, in accordance with the
Servicing Standard); provided, however, that, subject to Section 3.07(f), if
any Mortgage permits the holder thereof to dictate to the Mortgagor the
Insurance Policy coverage to be maintained on such Mortgaged Property, the
Servicer or the Special Servicer, as applicable, shall impose such insurance
requirements as are consistent with the Servicing Standard. Subject to Section
3.17(a), the Special Servicer shall maintain for each REO Property no less
Insurance Policy coverage than was previously required of the Mortgagor under
the related Loan.
All such Insurance Policies shall (i) contain a "standard" mortgagee
clause, with loss payable to the Servicer on behalf of the Trustee (in the
case of insurance maintained in respect of Loans other than REO Properties),
(ii) be in the name of the Special Servicer (in the case of insurance
maintained in respect of REO Properties) on behalf of the Trustee, (iii)
include coverage in an amount not less than the lesser of the full replacement
cost of the improvements which are a part of the Mortgaged Property or the
outstanding principal balance owing on the related Loan, but in any case in
such an amount so as to avoid the application of any co-insurance clause, (iv)
include a replacement cost endorsement providing no deduction for depreciation
(unless such endorsement is not permitted under the related Loan documents)
and (v) be issued by either (x) a Qualified Insurer or (y) for any Insurance
Policy being maintained by the related Mortgagor, an insurance carrier meeting
the requirements of the related Mortgage, provided that such Qualified Insurer
or other insurance carrier is authorized under applicable law to issue such
Insurance Policies. Any amounts collected by the Servicer or the Special
Servicer under any such Insurance Policies (other than amounts to be applied
to the restoration or repair of the related Mortgaged Property or REO Property
or amounts to be released to the related Mortgagor, in each case in accordance
with the Servicing Standard and the provisions of the related Loan) shall be
deposited in the Certificate Account, subject to withdrawal pursuant to
Section 3.05(a).
Any costs incurred by the Servicer in maintaining any such Insurance
Policies in respect of Loans (other than with respect to REO Properties) if
the Mortgagor defaults on its obligation to maintain such Insurance Policies
shall be advanced by the Servicer as a Servicing Advance and will be charged
to the related Mortgagor. The amounts so advanced shall not, for purposes of
calculating monthly distributions to Certificateholders, be added to the
unpaid principal balance of the related Loan, notwithstanding that the terms
of such Loan so permit. Any cost incurred by the Special Servicer in
maintaining any such Insurance Policies with respect to REO Properties shall
be an expense of the Trust Fund payable out of the related REO Account
pursuant to Section 3.16(c) or, if the amount on deposit therein is
insufficient therefor, advanced by the Servicer as a Servicing Advance.
(b)
(i) If the Servicer or the Special Servicer obtains and
maintains a blanket Insurance Policy with a Qualified Insurer insuring against
fire and hazard losses on all of the Loans or REO Properties, as the case may
be, required to be serviced and administered by it hereunder, and such Insurance
Policy provides protection equivalent to the individual policies otherwise
required, then the Servicer or the Special Servicer, as the case may be, shall
conclusively be deemed to have satisfied its obligation to cause fire and hazard
insurance to be maintained on the related Mortgaged Properties or REO
Properties. Such blanket Insurance Policy may contain a deductible clause, in
which case if there shall not have been maintained on the related Mortgaged
Property or REO Property a fire and hazard Insurance Policy complying with the
requirements of Section 3.07(a), and there shall have been one or more losses
which would have been covered by such Insurance Policy, the Servicer or the
Special Servicer shall promptly deposit into the Certificate Account (or, if
such Loan is a Construction Loan, the Construction Loan Servicing Account) from
its own funds the portion of such loss or losses that would have been covered
under the individual policy (giving effect to any deductible limitation or, in
the absence of such deductible limitation, the deductible limitation that is
consistent with the Servicing Standard) but is not covered under the blanket
Insurance Policy because of such deductible clause. In connection with its
activities as administrator and servicer of the Loans, the Servicer agrees to
prepare and present, on behalf of itself, the Trustee and Certificateholders,
claims under any such blanket Insurance Policy in a timely fashion in accordance
with the terms of such policy. The Special Servicer, to the extent consistent
with the Servicing Standard, may maintain earthquake insurance on REO
Properties, provided coverage is available at commercially reasonable rates.
(ii) If the Servicer or the Special Servicer causes any Mortgaged
Property or REO Property to be covered by a master single interest Insurance
Policy with a Qualified Insurer naming the Servicer or the Special Servicer on
behalf of the Trustee as the loss payee, then to the extent such Insurance
Policy provides protection equivalent to the individual policies otherwise
required, the Servicer or the Special Servicer shall conclusively be deemed to
have satisfied its obligation to cause such insurance to be maintained on the
related Mortgage Properties and REO Properties. If the Servicer or the Special
Servicer causes any Mortgaged Property or REO Property to be covered by such
master single interest Insurance Policy, the incremental costs of such insurance
applicable to such Mortgaged Property or REO Property (i.e., other than any
minimum or standby premium payable for such policy whether or not any Mortgaged
Property or REO Property is covered thereby) shall be paid by the Servicer out
of its own funds. Such master single interest Insurance Policy may contain a
deductible clause, in which case the Servicer or the Special Servicer shall, if
(A) there shall not have been maintained on the related Mortgaged Property or
REO Property a policy otherwise complying with the provisions of Section 3.07(a)
and (B) there shall have been one or more losses which would have been covered
by such policy had it been maintained, deposit into the Certificate Account from
its own funds the amount not otherwise payable under the master single interest
Insurance Policy because of such deductible clause, to the extent that any such
deductible exceeds the deductible limitation that pertained to the related Loan,
or, in the absence of any such deductible limitation, the deductible limitation
which is consistent with the Servicing Standard.
(c) Each of the Servicer and Special Servicer shall maintain with
responsible companies, at their own expense, a blanket fidelity bond (a
"Fidelity Bond") and an errors and omissions insurance policy with a Qualified
Insurer, with broad coverage on all officers, employees or other personnel
acting in any capacity requiring such persons to handle funds, money, documents
or paper relating to the Loans ("Servicer Employees," in the case of the
Servicer, and "Special Servicer Employees," in the case of the Special
Servicer). Any such Fidelity Bond and errors and omissions insurance shall
protect and insure the Servicer against losses, including forgery, theft,
embezzlement, fraud, errors and omissions, failure to maintain any insurance
policies required pursuant to the Agreement and negligent acts of such Servicer
Employees or Special Servicer Employees. Such errors and omissions policy shall
also protect and insure the Servicer against losses in connection with the
release or satisfaction of a Loan without having obtained payment in full of the
indebtedness secured thereby. No provision of this Section requiring such
Fidelity Bond and errors and omissions insurance shall diminish or relieve the
Servicer or Special Servicer from its duties and obligations as set forth in
this Agreement.
The minimum coverage under any such Fidelity Bond and errors and
omissions insurance policy shall be at least equal to $1,000,000. The Servicer
or the Special Servicer, as applicable, shall cause the Trustee, on behalf of
the Trust, to be named as a loss payee on each such Fidelity Bond and errors and
omissions policy. Notwithstanding the foregoing, so long as the long-term debt
or the deposit obligations or claims-paying ability of the Servicer or Special
Servicer (or its immediate or remote parent) is rated at least "A2" by Moody's
and "A" by Fitch (or, if not rated by Fitch, upon written confirmation by Fitch
that self-insurance by the Servicer or the Special Servicer, as applicable, with
respect to a Fidelity Bond would not by reason thereof cause Fitch to qualify,
downgrade or withdraw the then-current rating assigned to any of the
Certificates that are currently being rated by Fitch), the Servicer or the
Special Servicer, respectively, shall be allowed to provide self-insurance with
respect to a Fidelity Bond. The amount of coverage shall be at least equal to
the coverage that would be required by FNMA or FHLMC, whichever is greater, with
respect to the Servicer or the Special Servicer if the Servicer or the Special
Servicer, as applicable, were servicing and administering the Loans or Specially
Serviced Loans, as applicable, for FNMA or FHLMC. Coverage of the Servicer or
the Special Servicer under a policy or bond obtained by an Affiliate of the
Servicer or the Special Servicer and providing the coverage required by this
Section 3.07(c) shall satisfy the requirements of this Section 3.07(c).
The Special Servicer and the Servicer will promptly report in writing
to the Trustee any material changes that may occur in their respective Fidelity
Bonds, if any, and/or their respective errors and omissions Insurance Policies,
as the case may be, and will furnish to the Trustee copies of all binders and
policies or certificates evidencing that such bonds, if any, and insurance
policies are in full force and effect.
(d) During all such times as any Mortgaged Property shall be in a
federally designated special flood hazard area (if flood insurance has been made
available), the Servicer will use its reasonable best efforts to cause the
related Mortgagor (in accordance with applicable law and the terms of the Loan
documents) to maintain, and, if the related Mortgagor shall default in its
obligation to so maintain, shall itself maintain to the extent available at
commercially reasonable rates (as determined by the Servicer in accordance with
the Servicing Standard), flood insurance in respect thereof, but only to the
extent the related Loan permits the mortgagee to require such coverage and the
maintenance of such coverage is consistent with the Servicing Standard. Such
flood insurance shall be in an amount equal to the least of (i) the unpaid
principal balance of the related Loan, (ii) the maximum amount of insurance
which is available under the Flood Disaster Protection Act of 1973, as amended,
and (iii) the amount required by the Loan. If the cost of any insurance
described above is not borne by the Mortgagor, the Servicer shall promptly make
a Servicing Advance for such costs, subject to Section 3.03(c).
(e) During all such times as any REO Property shall be located in a
federally designated special flood hazard area, the Special Servicer will cause
to be maintained, to the extent available at commercially reasonable rates (as
determined by the Special Servicer in accordance with the Servicing Standard), a
flood insurance policy meeting the requirements of the current guidelines of the
Federal Insurance Administration in an amount representing coverage not less
than the maximum amount of insurance which is available under the Flood Disaster
Protection Act of 1973, as amended. The cost of any such flood insurance with
respect to an REO Property shall be an expense of the Trust Fund payable out of
the related REO Account pursuant to Section 3.16(c) or, if the amount on deposit
therein is insufficient therefor, paid by the Servicer as a Servicing Advance.
(f) Notwithstanding the provisions of the related Mortgage and any
other provision of this Agreement, but otherwise in accordance with the
Servicing Standard, the Servicer shall not require any Mortgagor to obtain
insurance in excess of the amounts of coverage and deductibles heretofore
required by the applicable Mortgage Loan Seller in connection with the
origination of the related Loan (such amounts, with respect to each Loan, the
"Origination Required Insurance Amounts"), unless the Servicer determines, in
accordance with the Servicing Standard, that such Origination Required
Insurance Amounts would not be prudent for property of the same type as the
related Mortgaged Property. The Servicer shall require that each policy of
business-interruption insurance maintained by a Mortgagor have a minimum term
of at least twelve months. The Depositor shall provide evidence to the
Servicer of the Origination Required Insurance Amounts for each Mortgaged
Property.
SECTION 3.08. Enforcement of Due-On-Sale and Due-On-Encumbrance
Clauses; Assumption Agreements; Defeasance Provisions.
(a) (i) As to each Loan which contains a provision in the nature of a
"due-on-sale" clause, which by its terms:
(A) provides that such 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 the related
Borrower or
(B) provides that such Loan may not be assumed without the consent of
the mortgagee in connection with any such sale or other transfer,
the Special Servicer (whether or not such Loan is a Specially Serviced Loan)
shall enforce such due-on-sale clause, unless the Special Servicer determines,
in accordance with the Servicing Standard, that (1) not declaring an Event of
Default (as defined in the related Mortgage) or (2) granting such consent would
be likely to result in a greater recovery, on a present value basis (discounting
at the related Mortgage Rate), than would enforcement of such clause or the
failure to grant such consent. If the Special Servicer determines that (1) not
declaring an Event of Default (as defined in the related Mortgage) or (2)
granting such consent would be likely to result in a greater recovery, the
Special Servicer shall take or enter into an assumption agreement from or with
the proposed transferee as obligor thereon, provided that (x) the credit status
of the prospective transferee is in compliance with the Special Servicer's
regular commercial mortgage loan origination criteria or the Servicing Standard
and the terms of the related Mortgage and (y) with respect to any Loan which is
a Significant Loan, the Special Servicer shall have received written
confirmation from each of the Rating Agencies that such assumption would not, in
of itself, cause a downgrade, qualification or withdrawal of any of the then
current ratings assigned to the Certificates.
(ii) Notwithstanding the provisions of any Loan, foreclosure by a
Mezzanine Loan Holder on any Mezzanine Loan Collateral securing a
Mezzanine Loan to an affiliate of the related Borrower shall not, for
purposes of this Agreement, be deemed to be a violation of the
due-on-sale clause of the related Loan Documents or of clause (i) of this
Section 3.08(a) so long as the foreclosing party is a Permitted Mezzanine
Loan Holder.
(iii) Neither the Servicer nor the Special Servicer shall
(x) consent to the foreclosure of any Mezzanine Loan other than by a
Permitted Mezzanine Loan Holder or (y) consent to the transfer of any
Mezzanine Loan except to a Permitted Mezzanine Loan Holder, except, in
each case, as otherwise provided in Section 3.08(a)(i). Neither the
consent of the Servicer nor the consent of the Special Servicer shall be
required for the foreclosure by a Permitted Mezzanine Loan Holder if an
event of default has been declared under the related Loan (and each
Rating Agency has been notified of such event of default). In no event
shall a Mezzanine Loan Holder be required to pay any assumption fee,
modification fee or other service charge in connection with any
foreclosure upon Mezzanine Loan Collateral, transfer of ownership of the
related Mortgaged Property to such Mezzanine Loan Holder and/or
assumption of the related Loan. Nothing herein shall prevent a Mezzanine
Loan Holder from appointing a receiver or trustee with respect to any
Mezzanine Loan Collateral, foreclosing upon any reserves, escrow accounts
or cash collateral accounts pledged under the related Mezzanine Loan
(provided none of such accounts have been pledged under the related Loan)
or otherwise taking an assignment of any cash flows from any Mezzanine
Loan Collateral.
(b) As to each Loan which contains a provision in the nature of a
"due-on-encumbrance" clause, which by its terms:
(i) provides that such Loan shall (or, at the mortgagee's
option, may) become due and payable upon the creation of any
additional lien or other encumbrance on the related Mortgaged
Property or
(ii) requires the consent of the mortgagee to the creation of
any such additional lien or other encumbrance on the related
Mortgaged Property,
then the Special Servicer (whether or not such Loan is a Specially Serviced
Loan) shall enforce such due-on-encumbrance clause and in connection therewith
shall (i) accelerate payments thereon or (ii) withhold its consent to such lien
or encumbrance unless the Special Servicer (x) determines, in accordance with
the Servicing Standard, that (1) not accelerating payments on such Loan or (2)
granting such consent would result in a greater recovery on a present value
basis (discounting at the related Mortgage Rate) than would enforcement of such
clause or the failure to grant such consent and (y) receives prior written
confirmation from each of the Rating Agencies that (1) not accelerating such
payments or (2) granting such consent would not, in and of itself, cause a
downgrade, qualification or withdrawal of any of the then-current ratings
assigned to the Certificates.
(c) Nothing in this Section 3.08 shall constitute a waiver of the
Trustee's right, as the mortgagee of record, to receive notice of any
assumption of a Loan, any sale or other transfer of the related Mortgaged
Property or the creation of any additional lien or other encumbrance with
respect to such Mortgaged Property.
(d) Except as otherwise permitted by Section 3.20, the Special
Servicer shall not agree to modify, waive or amend any term of any Loan in
connection with the taking of, or the failure to take, any action pursuant to
this Section 3.08.
(e) Notwithstanding any other provisions of this Section 3.08, the
Servicer may grant a Mortgagor's request for consent to subject the related
Mortgaged Property to an easement or right-of-way for utilities, access,
parking, public improvements or another purpose and may consent to subordination
of the related Loan to such easement or right-of-way, provided that the Servicer
shall have determined (i) in accordance with the Servicing Standard that such
easement or right-of-way will not materially interfere with the then-current use
of the related Mortgaged Property or the security intended to be provided by
such Mortgage and will not materially or adversely affect the value of such
Mortgaged Property and (ii) that no REMIC created hereunder will fail to qualify
as a REMIC as a result thereof and that no tax on "prohibited transactions" or
"contributions" after the Closing Date would be imposed on any REMIC created
hereunder as a result thereof. The Servicer shall use reasonable efforts,
consistent with the Servicing Standard, to cause the Mortgagor, at the
Mortgagor's expense, to obtain legal advice to make the determination described
in clause (ii). If the Servicer is unable to cause the Mortgagor to obtain such
legal advice, the Servicer shall obtain such legal advice, if necessary, in
accordance with the Servicing Standard, and the cost thereof shall be deemed a
Servicing Advance.
(f) With respect to any Loan which permits release of Mortgaged
Properties through defeasance:
(i) The Servicer, with the consent of the Special Servicer,
shall effect such defeasance only through the purchase of U.S.
government obligations satisfying both the defeasance rule of the
REMIC Provisions and the requirements of clause (i) of the definition
of Permitted Investments herein which purchase shall be made in
accordance with the terms of such Loan; provided, however, that the
Servicer shall not accept the amounts paid by the related Borrower to
effect defeasance until such U.S. government obligations have been
identified and an Independent accounting firm has provided the
Servicer a comfort letter that states that such defeasance is in the
correct amount and is in other respects in accordance with the terms
of such Loan and provided, further, that no defeasance shall be
accepted within two years after the Closing Date.
(ii) If such Loan permits the assumption of the obligations
of the related Borrower by a successor mortgagor, the Servicer, with
the consent of the Special Servicer, shall cause the Borrower to pay
all expenses incurred in connection with the establishment of a
successor Borrower and cause an assumption by such successor Borrower
of the defeased obligations under the related Note only if (a) a
given Rating Agency indicates that such assumption would be a
prerequisite to such Rating Agency's delivery of written confirmation
that such defeasance would not cause such Rating Agency to withdraw,
qualify or downgrade any of its then-current ratings on the
Certificates, (b) the Borrower would have more assets, after such
defeasance, than the U.S. government obligations to be obtained or
(c) the Borrower is not a special-purpose entity.
(iii) The Servicer shall require an Opinion of Counsel from
the related Borrower, at such Borrower's expense, to the effect that
the Trustee has a first priority security interest in the defeasance
deposit and the related U.S. government obligations and that the
assignment thereof is valid and enforceable.
(iv) The Servicer shall obtain at the related Borrower's
expense a certificate from an Independent certified public accountant
certifying that the U.S. government obligations comply with the
requirements of the related Loan Documents.
(v) Prior to permitting release of any Mortgaged Property
through defeasance, the Servicer shall obtain, at the expense of the
related Borrower, written confirmation from each Rating Agency that
such defeasance would not, in and of itself, result in a downgrade,
qualification or withdrawal of any of the then current ratings
assigned to the Certificates.
(vi) Neither the Servicer nor the Special Servicer shall
permit the release of any Mortgaged Property through defeasance
unless the related Borrower establishes to the satisfaction of the
Servicer or the Special Servicer that the lien on such Mortgaged
Property will be released to facilitate the disposition thereof or to
facilitate any other customary commercial transaction.
(vii) Prior to permitting release of any Mortgaged Property
through defeasance, if the related Loan so requires and provides for
the related Borrower to pay the cost thereof, the Servicer shall
require such Borrower to deliver an Opinion of Counsel to the effect
that such release will not cause any REMIC created hereunder to fail
to qualify as a REMIC at any time that any Certificates are
outstanding or cause a tax to be imposed on the Trust Fund under the
REMIC Provisions.
Any costs to the Servicer of obtaining legal advice to make the determinations
required to be made by it pursuant to this Section 3.08(f), or obtaining the
Rating Agency confirmations required by this Section 3.08(f), shall be borne
by the related Borrower as a condition to the Servicer's obligation to effect
the defeasance of the related Loan.
(g) With respect to any Loan having the benefit of a Lease
Enhancement Policy or Residual Value Policy, neither the Servicer nor the
Special Servicer shall agree to any modification to, or waiver of any term of,
the related Lease Enhancement Policy or Residual Value Policy (i) without
written confirmation by each Rating Agency that such modification or waiver
would not, in and of itself, result in a downgrade, qualification or
withdrawal of any of the current ratings assigned to the Certificates and (ii)
without a determination that such modification or waiver will not constitute a
"significant modification" under the REMIC Provisions. Any costs to the
Servicer of obtaining legal advice to make the determinations required to be
made by it pursuant to this Section 3.08(g), or obtaining the Rating Agency
confirmations required by this Section 3.08(g), shall be borne by the related
Borrower as a condition to the Servicer's obligation to agree to any
modification or waiver referred to in the preceding sentence.
(h) With respect to any Loan, neither the Servicer nor the Special
Servicer shall permit the related Borrower to substitute any real property,
any rights with respect to real property, or any other property interest
whatsoever for the Mortgaged Property securing such Loan as of the Closing
Date without receipt of an Opinion of Counsel, at the expense of the Borrower,
to the effect that the substitution will not cause the related Loan to fail to
qualify as a "qualified mortgage" as defined under Section 860G(a)(3) of the
Code while such Loan is owned by the Lower-Tier REMIC.
(i) With respect to any Loan pursuant to which the Borrower may not
incur additional indebtedness encumbering the related Mortgaged Property
without the consent of the lender, neither the Servicer nor the Special
Servicer shall consent to such additional debt without written confirmation to
the Servicer or the Special Servicer, as applicable, and the Trustee by each
Rating Agency that such modification or waiver would not, in and of itself,
result in a downgrade, qualification or withdrawal of any of the current
ratings assigned to the Certificates. Any costs to the Servicer of obtaining
the Rating Agency confirmations required by this Section 3.08(i) shall be
borne by the related Borrower as a condition to the Servicer's obligation to
agree to any modification or waiver referred to in the preceding sentence.
(j) With respect to any Construction Loan which is secured by a
Mortgaged Property on which a CVS Store is to be situated, neither the
Servicer nor the Special Servicer shall permit CVS to substitute a New CVS
Store for the uncompleted CVS Store for which it is proposed to be substituted
without an Opinion of Counsel (which shall not be an expense of the Servicer
or Special Servicer) to the effect that the substitution will not cause such
Construction Loan to fail to qualify as a "qualified mortgage" as defined
under Section 860(a)(3) of the Code while such Loan is owned by the Lower-Tier
REMIC.
SECTION 3.09. Realization upon Defaulted Loans.
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(a) The Special Servicer shall, subject to subsections (b) through
(d) of this Section 3.09, exercise reasonable efforts, consistent with the
Servicing Standard, to foreclose upon or otherwise comparably convert (which
may include an REO Acquisition) the ownership of any property securing such
Loans as come into and continue in default as to which no satisfactory
arrangements can be made for collection of delinquent payments, and which are
not released from the Trust Fund pursuant to any other provision hereof. In
any case in which a Mortgaged Property shall have suffered damage such that
the complete restoration of such property is not fully reimbursable by the
hazard insurance policies or flood insurance policies required to be
maintained pursuant to Section 3.07, the Servicer shall not be required to
make a Servicing Advance and expend funds toward the restoration of such
property unless the Special Servicer has determined in its reasonable judgment
in accordance with the Servicing Standard that such restoration will increase
the net proceeds of liquidation of such Mortgaged Property to
Certificateholders after reimbursement to the Servicer for such Servicing
Advance and interest thereon and the Servicer has determined that such
Servicing Advance together with accrued and unpaid interest thereon will be
recoverable by the Servicer out of the proceeds of liquidation of such
Mortgaged Property, as contemplated in Section 3.05(a)(iv). The Special
Servicer shall be responsible for all other costs and expenses incurred by it
in any such proceedings (such costs and expenses to be advanced by the
Servicer to the Special Servicer and recoverable by the Servicer as a
Servicing Advance), provided that, in each case, such cost or expense would
not, if incurred, constitute a Nonrecoverable Servicing Advance.
Nothing contained in this Section 3.09 shall be construed to require
the Servicer or the Special Servicer, on behalf of the Trust Fund, to make a
bid on any Mortgaged Property at a foreclosure sale or similar proceeding that
is in excess of the fair market value of such property, as determined by the
Servicer or the Special Servicer in its reasonable and good faith judgment
taking into account the factors described in Section 3.18(d) and the results
of any Appraisal obtained pursuant to the following sentence, all such bids to
be made in a manner consistent with the Servicing Standard. If and when the
Special Servicer or the Servicer deems it necessary and prudent for purposes
of establishing the fair market value of any Mortgaged Property securing a
Defaulted Loan, whether for purposes of bidding at foreclosure or otherwise,
the Special Servicer or the Servicer, as the case may be, is authorized to
have an Appraisal performed with respect to such property, the cost of which
Appraisal shall be paid by the Servicer as a Servicing Advance.
(b) The Special Servicer shall not acquire any personal property
pursuant to this Section 3.09 unless either:
(i) such personal property is incident to real property
(within the meaning of Section 856(e)(1) of the Code) so acquired by
the Special Servicer; or
(ii) the Special Servicer shall have obtained an Opinion of
Counsel (the cost of which shall be a Servicing Advance) to the
effect that the holding of such personal property by the Trust Fund
will not cause the imposition of a tax on any REMIC created hereunder
under the REMIC Provisions or cause any REMIC created hereunder to
fail to qualify as a REMIC at any time that any Uncertificated
Lower-Tier or Intermediate-Tier Interest or Certificate is
outstanding.
(c) Notwithstanding the foregoing provisions of this Section 3.09,
the Special Servicer shall not, on behalf of the Trustee, obtain title to a
Mortgaged Property in lieu of foreclosure or otherwise, or take any other
action with respect to any Mortgaged Property, if, as a result of any such
action, the Trustee, on behalf of the Certificateholders, would be considered
to hold title to, to be a "mortgagee-in-possession" of, or to be an "owner" or
"operator" of such Mortgaged Property within the meaning of CERCLA or any
comparable law, unless (as evidenced by an Officer's Certificate to such
effect delivered to the Trustee) the Special Servicer has previously
determined in accordance with the Servicing Standard, based on an
Environmental Assessment of such Mortgaged Property performed within the
preceding 12 months by an Independent Person who regularly conducts
Environmental Assessments, that:
(i) the Mortgaged Property is in compliance with applicable
environmental laws and regulations or, if not, 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 present value basis than not taking such actions; and
(ii) there are no circumstances or conditions present at the
Mortgaged Property relating to the use, management or disposal of
Hazardous Materials for which investigation, testing, monitoring,
containment, clean-up or remediation could be required under any
applicable environmental laws and regulations or, if such
circumstances or conditions are present for which any such action
could be required, that taking such actions with respect to such
Mortgaged Property is reasonably likely to produce a greater recovery
on a present value basis than not taking such actions.
The cost of any such Environmental Assessment and the cost of any
remedial, corrective or other further action contemplated by clause (i) and/or
clause (ii) of the preceding sentence shall be paid by the Servicer as a
Servicing Advance. If any such Environmental Assessment so warrants, the
Special Servicer shall, at the expense of the Trust Fund, perform such
additional environmental testing as it deems necessary and prudent to
determine whether the conditions described in clauses (i) and (ii) of the
second preceding sentence have been satisfied.
(d) If (i) the environmental testing contemplated by subsection (c)
above establishes that either of the conditions set forth in clauses (i) and
(ii) of the first sentence thereof has not been satisfied with respect to any
Mortgaged Property securing a Defaulted Loan and (ii) there has been no breach
of any of the representations and warranties set forth in or required to be
made pursuant to Section 6 of the related Mortgage Loan Purchase Agreement for
which the CSFB Mortgage Loan Seller could be required to repurchase such
Defaulted Loan pursuant to Section 7 of the Mortgage Loan Purchase Agreement,
then the Special Servicer shall take such action as it deems to be in the best
economic interest of the Trust Fund and consistent with the Servicing Standard
(other than proceeding to acquire title to the Mortgaged Property) and is
hereby authorized at such time as it deems appropriate to release such
Mortgaged Property from the lien of the related Mortgage.
(e) The Special Servicer shall provide written reports and a copy of
any Environmental Assessments to the Trustee, the Servicer and the Certificate
Owners of the Controlling Class monthly regarding any actions taken by the
Special Servicer with respect to any Mortgaged Property securing a Defaulted
Loan as to which the environmental testing contemplated in subsection (c)
above has revealed that either of the conditions set forth in clauses (i) and
(ii) of the first sentence thereof has not been satisfied, in each case the
earlier to occur of satisfaction of both such conditions, repurchase of the
related Loan by the CSFB Mortgage Loan Seller or release of the lien of the
related Mortgage on such Mortgaged Property; provided, however, that with
respect to each such report or Environmental Assessment, if beneficial
ownership of the Controlling Class resides in more than one Certificate Owner,
the Special Servicer shall be responsible only for the expense of providing
the first such copy thereof and shall be entitled to reimbursement from the
Trust Fund for the expense of any additional copies so provided. The Trustee
shall forward all such reports to the Certificateholders and each Rating
Agency promptly following the receipt thereof.
(f) The Servicer shall report to the Internal Revenue Service and
the related Mortgagor, in the manner required by applicable law, the
information required to be reported regarding any Mortgaged Property which is
abandoned or foreclosed, the receipt of mortgage interests received in a trade
or business and the forgiveness of indebtedness with respect to any mortgaged
property required by Sections 6050J, 6050H and 6050P, respectively, of the
Code. The Special Servicer shall provide the Servicer with such information or
reports as the Servicer deems necessary to fulfill its obligations under this
Section 3.09(f) promptly upon the Servicer's request therefor. The Servicer
shall deliver a copy of any such report to the Trustee and the Special
Servicer.
(g) The Special Servicer shall have the right to determine, in
accordance with the Servicing Standard, the advisability of the maintenance of
an action to obtain a deficiency judgment if the state in which the Mortgaged
Property is located and the terms of the Loan permit such an action.
(h) The Special Servicer shall maintain accurate records, prepared
by one of its Servicing Officers, of each Final Recovery Determination in
respect of a Defaulted 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 Servicer no later than the next succeeding
P&I Advance Determination Date.
SECTION 3.10. Trustee to Cooperate; Release of Mortgage Files.
-----------------------------------------------
(a) Upon the payment in full of any Loan, or the receipt by the
Servicer or the Special Servicer, as the case may be, of a notification that
payment in full shall be escrowed in a manner customary for such purposes, the
Servicer or Special Servicer, as the case may be, will immediately notify the
Trustee and request delivery of the related Mortgage File. Any such notice and
request shall be in the form of a Request for Release signed by a Servicing
Officer and shall include a statement to the effect that all amounts received
or to be received in connection with such payment which are required to be
deposited in the Certificate Account pursuant to Section 3.04(a) or remitted
to the Servicer to enable such deposit, have been or will be so deposited.
Within seven Business Days (or within such shorter period as release can
reasonably be accomplished if the Servicer notifies the Trustee of an
exigency) of receipt of such notice and request, the Trustee (or, to the
extent provided in Section 3.01(b), the Servicer or the Special Servicer, as
applicable) shall execute such instruments of satisfaction, deeds of
reconveyance and other documents as shall have been furnished to it by the
Servicer, and the Trustee shall release and deliver, or cause any related
Custodian to release and deliver, the related Mortgage File to the Servicer or
Special Servicer, as the case may be. No expenses incurred in connection with
any instrument of satisfaction or deed of reconveyance shall be chargeable to
the Certificate Account.
(b) From time to time as is appropriate for servicing or foreclosure
of any Loan, the Servicer or the Special Servicer shall deliver to the Trustee
a Request for Release signed by a Servicing Officer. Upon receipt of the
foregoing, the Trustee shall deliver or cause the related Custodian to deliver
the Mortgage File or any document therein to the Servicer or the Special
Servicer (or a designee), as the case may be. Upon return of such Mortgage
File or such document to the Trustee or the related Custodian, or the delivery
to the Trustee of a certificate of a Servicing Officer of the Servicer or the
Special Servicer that such Loan has become an REO Property, a copy of the
Request for Release shall be released by the Trustee to the Servicer or the
Special Servicer (or a designee), as the case may be, with the original being
released upon termination of the Trust Fund.
(c) Within seven Business Days (or within such shorter period as
delivery can reasonably be accomplished if the Special Servicer notifies the
Trustee of an exigency) of receipt thereof, the Trustee shall execute and
deliver to the Special Servicer any court pleadings, requests for trustee's
sale or other documents necessary to the release of a Loan or REO Loan, or to
foreclosure or trustee's sale in respect of a Mortgaged Property or to any
legal action brought to obtain judgment against any Mortgagor on the Note or
Mortgage or to obtain a deficiency judgment, or to enforce any other remedies
or rights provided by the Note or Mortgage or otherwise available at law or in
equity. The Special Servicer shall be responsible for the preparation of all
such documents and pleadings. When submitted to the Trustee for signature,
such documents or pleadings shall be accompanied by a certificate of a
Servicing Officer requesting that such pleadings or documents be executed by
the Trustee and certifying as to the reason such documents or pleadings are
required, that the proposed action is in the best interest of the
Certificateholders and that the execution and delivery thereof by the Trustee
will not invalidate or otherwise affect the lien of the Mortgage, except for
the termination of such a lien upon completion of the foreclosure or trustee's
sale.
SECTION 3.11. Servicing Compensation.
----------------------
(a) As compensation for its activities hereunder, the Servicer shall
be entitled to receive the Servicing Fee with respect to each Loan and REO
Loan at the Servicing Fee Rate (in accordance with the same terms of the
related Note as are applicable to the accrual of interest at the Mortgage
Rate), computed on the basis of the Stated Principal Balance of such Loan on a
30/360 basis. The Servicing Fee with respect to any Loan or REO Loan shall
cease to accrue if a Liquidation Event occurs in respect thereof. The
Servicing Fee shall be payable monthly (or, with respect to the United Artists
Loan, semi-annually), on a loan-by-loan basis, from payments of interest on
each Loan and REO Revenues allocable as interest on each REO Loan. In no event
will the Servicer or any Seller-Servicer be entitled to retain a servicing fee
from the amount of any P&I Advance or to pay itself separate servicing
compensation from amounts otherwise constituting Prepayment Interest Excess,
regardless of whether the related Borrower is obligated to reimburse Servicing
Fees or Primary Servicing Fees.
The Servicer, on behalf of itself or any Seller-Servicer, shall be
entitled to recover unpaid Servicing Fees and Primary Servicing Fees (but no
Construction Loan Servicing Fees) in respect of any Loan or REO Loan out of
that portion of related payments, Insurance and Condemnation Proceeds,
Liquidation Proceeds and REO Revenues (in the case of an REO Loan) allocable
as recoveries of interest, to the extent permitted by Section 3.05(a). The
right to receive the Servicing Fee (and, except to the extent set forth in the
Seller-Servicer Agreement with respect to a Seller-Servicer, the related
Primary Servicing Fee), or, with respect to any Construction Loan (except to
the extent set forth in the GECLS Sub-Servicing Agreement), the Construction
Loan Servicing Fee, may not be transferred in whole or in part except in
connection with the transfer of all of the Servicer's responsibilities and
obligations under this Agreement. The Servicer shall pay the annual fees of
each Rating Agency by wire transfer; and the CSFB Mortgage Loan Seller, within
30 days after request therefor, shall reimburse the Servicer for such annual
fees.
Additional servicing compensation in the form of (i) one-half of all
assumption fees paid by the Mortgagors on all Loans that are not Specially
Serviced Loans (but only to the extent that all amounts then due and payable
with respect to such Loans (except for interest on Advances then outstanding)
have been paid), (ii) charges for beneficiary statements or demands and
amounts collected for checks returned for insufficient funds, (iii) all fees
received on or with respect to Loan modifications for which the Servicer is
responsible pursuant to Section 3.20(a)(ii) (but only to the extent actually
collected from the related Mortgagor and only to the extent that all amounts
then due and payable after giving effect to any modification with respect to
the related Loan have been paid) and (iv) other customary charges, in each
case only to the extent actually paid by the related Mortgagor, shall be
retained by the Servicer and shall not be required to be deposited in the
Certificate Account pursuant to Section 3.04(a).
The Servicer also shall be entitled to additional servicing
compensation in the form of: (i) Penalty Charges received on each Loan (other
than Specially Serviced Loans) but only to the extent actually paid by the
related Mortgagor and to the extent that all amounts then due and payable with
respect to such Loan (including outstanding interest on all Advances accrued
with respect to such Loan) have been paid to the Servicer; (ii) interest or
other income earned on deposits relating to the Trust Fund in the Certificate
Account, any Cash Collateral Account and any Lock-Box Account in accordance
with Section 3.06(b) (but only to the extent of the Net Investment Earnings,
if any, with respect to each such account for each period from any
Distribution Date to the immediately succeeding P&I Advance Date); (iii)
interest earned on deposits in the Servicing Accounts that is not required by
applicable law or the related Loan to be paid to the Mortgagor; (iv) interest
earned on deposits in the Construction Loan Servicing Account that is not
required by applicable law or the related Construction Loans to be paid to the
related Construction Borrowers; and (v) collections representing Prepayment
Interest Excess for any Distribution Date (other than the greater of (x) with
respect to any Loan whose terms expressly permit collections of interest
through the following Due Date in connection with any voluntary Principal
Prepayment and (y) the aggregate of the Uncovered Prepayment Interest
Shortfalls for such Distribution Date). Notwithstanding anything to the
contrary in clause (i) of the first sentence of this paragraph or in the last
paragraph of Section 3.11(b), (x) the Servicer shall be entitled to that
portion, if any, of a Penalty Charge collected on a Specially Serviced Loan
that accrued prior to the related Servicing Transfer Event and (y) if the
Special Servicer has partially waived any Penalty Charge part of which accrued
prior to the related Servicing Transfer Event, any collections in respect of
such Penalty Charge shall be shared pro rata by the Servicer and the Special
Servicer based on the respective portions of such Penalty Charge to which they
would otherwise have been entitled.
The Servicer shall also be entitled to receive all Primary Servicing
Fees computed on the basis of the related Stated Principal Balance and for the
same period and in the same manner respecting which any related interest
payment due (or deemed to be due) on the related Loan is computed.
The Servicer shall be required to pay out of its own funds all
expenses incurred by it in connection with its servicing activities hereunder
(including, without limitation, payment of any amounts due, except for
premiums for any blanket Insurance Policy insuring against hazard losses
pursuant to Section 3.07), if and to the extent such expenses are not payable
directly out of the Certificate Account, and the Servicer shall not be
entitled to reimbursement therefor except as expressly provided in this
Agreement.
Notwithstanding the foregoing paragraphs of this Section 3.11, the
Servicing Fee on any Loan, other than a Specially Serviced Loan, and the
investment income earned on any Principal Prepayment made on such Loan during
a given Due Period, and due the Servicer on the related Distribution Date
shall be reduced by the Prepayment Interest Shortfall, if any, on such Loan
for such Distribution Date; provided, however, that with respect to any
Additional Collateral Loans as to which Additional Collateral is paid as a
Principal Prepayment, or any Donatelli Loan Special Prepayment, or any
Construction Loan as to which a Principal Prepayment in full is made by CVS
following the failure to complete the related CVS Store by the related Outside
Completion Date, neither the Servicing Fee on such Loan, nor the investment
income earned on any such Principal Prepayment, shall be reduced by the
Prepayment Interest Shortfall, if any, on such Loan for such Distribution
Date.
(b) As compensation for its activities hereunder, the Special
Servicer shall be entitled to receive the Special Servicing Fee with respect
to each Specially Serviced Loan and REO Loan. As to each Specially Serviced
Loan and REO Loan, the Special Servicing Fee shall accrue at the Special
Servicing Fee Rate (in accordance with the same terms of the related Note as
are applicable to the accrual of interest at the Mortgage Rate) and shall be
computed on the basis of the Stated Principal Balance of such Specially
Serviced Loan and for the same period respecting which any related interest
payment due on such Specially Serviced Loan or deemed to be due on such REO
Loan is computed. The Special Servicing Fee with respect to any Specially
Serviced Loan or REO Loan shall cease to accrue if a Liquidation Event occurs
in respect thereof. The Special Servicing Fee shall be payable monthly, on a
loan-by-loan basis, to the extent permitted by Section 3.05(a). The right to
receive the Special Servicing Fee may not be transferred in whole or in part
except in connection with the transfer of all of the Special Servicer's
responsibilities and obligations under this Agreement.
Additional servicing compensation in the form of (i) all assumption
fees on all Specially Serviced Loans, (ii) one-half of all assumption fees on
any Loans other than Specially Serviced Loans and (iii) all extension fees and
all fees received on or with respect to Loan modifications for which the
Special Servicer is responsible pursuant to Section 3.20(a)(iv), but only to
the extent actually collected from the related Mortgagor and only to the
extent that all amounts then due and payable after giving effect to any
modification with respect to the related Loan (including those payable to the
Servicer pursuant to Section 3.11(a)) have been paid, shall be promptly paid
to the Special Servicer by the Servicer and shall not be required to be
deposited in the Certificate Account pursuant to Section 3.04(a).
The Special Servicer shall also be entitled to additional servicing
compensation in the form of a Workout Fee with respect to each Corrected Loan
at the Workout Fee Rate of (i) 1.0% for any Loan with a Stated Principal
Balance of less than $10,000,000, (ii) 0.75% for any Loan with a Stated
Principal Balance equal to or greater than $10,000,000 but less than
$20,000,000 and (iii) 0.5% for any Loan with a Stated Principal Balance equal
to or greater than $20,000,000, applied to each collection of interest and
principal (including scheduled payments, prepayments, Balloon Payments and
payments at maturity) received on such Loan for so long as it remains a
Corrected Loan. The Workout Fee with respect to any Corrected Loan will cease
to be payable if such Loan again becomes a Specially Serviced Loan; provided
that a new Workout Fee will become payable if and when such Loan again becomes
a Corrected Loan. If the Special Servicer is terminated (other than for cause
or by resignation), it shall retain the right to receive any and all Workout
Fees payable with respect to Loans that became Corrected Loans during the
period that it acted as Special Servicer and were Corrected Loans at the time
of such termination (and the successor Special Servicer shall not be entitled
to any portion of such Workout Fees), in each case until the Workout Fee for
any such loan ceases to be payable in accordance with the terms hereof.
A Liquidation Fee will be payable with respect to each Specially
Serviced Loan as to which the Special Servicer receives any Liquidation
Proceeds subject to the exceptions set forth in the definition of Liquidation
Fee. As to each Specially Serviced Loan, the Liquidation Fee will be payable
out of, and will be calculated by application of a "Liquidation Fee Rate" of
(i)1.0 % for any Loan with a Stated Principal Balance of less than
$10,000,000, (ii) 0.75% for any Loan with a Stated Principal Balance equal to
or greater than $10,000,000 but less than $20,000,000, and (iii) 0.5% for any
Loan with a Stated Principal Balance equal to or greater than $20,000,000, in
each case expressed as a percentage of net liquidation proceeds received with
respect to such Specially Serviced Loan.
Notwithstanding anything to the contrary described above, no
Liquidation Fee will be payable based on, or out of, Liquidation Proceeds
received in connection with the repurchase of any Loan by the CSFB Mortgage
Loan Seller for a breach of representation or warranty or for defective or
deficient Loan documentation, the purchase of any Specially Serviced Loan by
the Servicer or the Special Servicer, the purchase by the Holders of the Class
V Certificates, of any ARD Loan pursuant to Section 9.03 or the purchase of
all of the Loans and REO Properties in connection with an optional termination
of the Trust Fund pursuant to Section 9.01. If, however, Liquidation Proceeds
are received with respect to any Corrected Loan and the Special Servicer is
properly entitled to a Workout Fee, such Workout Fee will be payable based on
and out of the portion of such Liquidation Proceeds that constitute principal
and/or interest on such Loan.
The Special Servicer will also be entitled to additional fees in the
form of Penalty Charges on each Specially Serviced Loan (but only to the
extent actually collected from the related Mortgagor and to the extent that
all amounts then due and payable with respect to such Specially Serviced Loan
(including outstanding interest on all Advances accrued with respect to such
Specially Serviced Loan) have been paid to the Special Servicer). The Special
Servicer shall be required to pay out of its own funds all expenses incurred
by it in connection with its servicing activities hereunder (including,
without limitation, payment of any amounts, other than management fees in
respect of REO Properties, due and owing to any of its Sub-Servicers and the
premiums for any blanket Insurance Policy obtained by it insuring against
hazard losses pursuant to Section 3.07), if and to the extent such expenses
are not payable directly out of the Certificate Account or the REO Account,
and the Special Servicer shall not be entitled to reimbursement therefor
except as expressly provided in this Agreement.
SECTION 3.12. Reports to the Trustee; Certificate Account Statements.
------------------------------------------------------
(a) The Servicer shall deliver to the Trustee and the Special
Servicer, no later than 1:00 p.m. New York City time on the second Business
Day prior to the Distribution Date, the Servicer Remittance Report in CSSA
format (as in effect from time to time) with respect to the related
Distribution Date (which shall include, without limitation, the Available
Distribution Amount) including a written statement of anticipated P&I Advances
and Servicing Advances for the related Distribution Date and any accrued but
unpaid interest on Advances. As to each Mortgage Loan, the Servicer shall
provide to the Special Servicer, by the close of business on each Distribution
Date and in a mutually agreeable electronic format, the amount of each
outstanding Advance and the interest accrued thereon as of such Distribution
Date. The Servicer shall begin all reporting in CSSA format no later than with
the Servicer Remittance Report for December 1998. The Servicer's
responsibilities under this Section 3.12(a) with respect to Specially Serviced
Loans and REO Loans shall be subject to the satisfaction of the Special
Servicer's obligations under Section 3.21.
(b) For so long as the Servicer makes deposits into and withdrawals
from the Certificate Account, not later than thirty (30) days after each
Distribution Date, the Servicer shall forward to the Trustee a statement
setting forth the status of the Certificate Account as of the close of
business on the last Business Day of the related Due Period showing the
aggregate amount of deposits into and withdrawals from the Certificate Account
of each category of deposit specified in Section 3.04 and each category of
withdrawal specified in Section 3.05 for the related Due Period. The Trustee
and its agents and attorneys may at any time during normal business hours,
upon reasonable notice, inspect and copy the books, records and accounts of
the Servicer relating solely to the Loans and the performance of its duties
hereunder.
(c) No later than 1:00 p.m. New York City time on the Servicer
Remittance Date, the Servicer shall deliver or cause to be delivered to the
Trustee the following reports with respect to the Loans (and, if applicable,
the related REO Properties), providing the required information (as of the
related Determination Date, in the case of clauses (i) through (vii)): (i) a
Comparative Financial Status Report, (ii) a Delinquent Loan Status Report;
(iii) an Historical Loan Modification Report; (iv) an Historical Loss Estimate
Report; and (v) an REO Status Report. Such reports shall be in writing and on
a CSSA electronic format reasonably acceptable to the Trustee and the
Servicer.
The information that pertains to Specially Serviced Loans and REO
Properties reflected in such reports shall be based solely upon the reports
delivered by the Special Servicer to the Servicer in writing and on a computer
readable medium reasonably acceptable to the Servicer and the Special Servicer
by 4:00 p.m. New York City time one Business Day after the related
Determination Date in the form required under Section 3.12(f) or shall be
provided by means of such reports so delivered by the Special Servicer to the
Servicer in the form so required. The Servicer's responsibilities under this
Section 3.12(c) with respect to REO Loans and Specially Serviced Loans shall
be subject to the satisfaction of the Special Servicer's obligations under
Section 3.12(f). In the absence of manifest error, the Servicer shall be
entitled to conclusively rely upon, without investigation or inquiry, the
information and reports delivered to it by the Special Servicer, and the
Trustee shall be entitled to conclusively rely upon the Servicer's reports and
the Special Servicer's reports without any duty or obligation to recompute,
verify or recalculate any of the amounts and other information stated therein.
Servicer shall provide to the Trustee any new data that Servicer collects or
reports in electronic format in its ordinary course of servicing.
(d) The Servicer shall deliver or cause to be delivered to the
Trustee the following materials, in each case to the extent that such
materials or the information on which they are based have been received by the
Servicer:
(i) At least annually by May 31, with respect to each Loan
and REO Loan (to the extent prepared by and timely received from the
Special Servicer in the case of any Specially Serviced Loan or REO
Loan), an Operating Statement Analysis for the related Mortgaged
Property or REO Property as of the end of the preceding fiscal year,
together with copies of the operating statements and rent rolls (but
only to the extent the related Borrower delivers such information to
the Servicer and, with respect to operating statements and rent rolls
for Specially Serviced Loans and REO Properties, to the extent timely
delivered by the Special Servicer to the Servicer), for the related
Mortgaged Property or REO Property as of the end of the preceding
fiscal year. The Servicer shall use its best reasonable efforts (but
shall not be required to institute litigation) to obtain said annual
operating statements and rent rolls with respect to each of the
Loans, other than Specially Serviced Loans or REO Loans, which
efforts shall include sending a letter to the related Borrower each
quarter (followed up with telephone calls) requesting such annual
operating statements and rent rolls until they are received, to the
extent such action is consistent with applicable law and the terms of
the Loans.
(ii) The Servicer shall maintain an Operating Statement
Analysis report for each Mortgaged Property and REO Property (to the
extent prepared by and received from the Special Servicer in the case
of any REO Property or any Mortgaged Property constituting security
for a Specially Serviced Loan). The Operating Statement Analysis
report for each Mortgaged Property (other than any such Mortgaged
Property which is REO Property or constitutes security for a
Specially Serviced Loan) shall be updated by the Servicer and
delivered to the Trustee within thirty days after receipt by the
Servicer of updated operating statements for such Mortgaged Property.
The Servicer will use any operating statements received with respect
to any Mortgaged Property (other than any such Mortgaged Property
which is an REO Property or constitutes security for a Specially
Serviced Loan) to update the Operating Statement Analysis report for
such Mortgaged Property, such updates shall be completed and copies
thereof sent to the Trustee within thirty days after receipt of the
necessary information.
The Special Servicer will be required pursuant to Section 3.12(g) to
deliver to the Servicer the information required pursuant to this Section
3.12(d) with respect to Specially Serviced Loans and REO Loans on or before
March 30 of each year, commencing on March 30, 1999, and within ten days after
its receipt of any operating statement for any related Mortgaged Property or
REO Property.
(e) No later than 1:00 p.m. New York City time on each Servicer
Remittance Date, the Servicer shall prepare and deliver to the Trustee, the
Rating Agencies and the Special Servicer, a Servicer Watch List of (x) all
Loans that the Servicer has determined are in jeopardy of becoming a Specially
Serviced Loan and (y) all Construction Loans as provided in Section 4.02(b).
For this purpose, the following Loans shall be deemed to be Loans that are in
jeopardy of becoming Specially Serviced Loans: (i) Loans having a current Debt
Service Coverage Ratio that is 80% or less of the Debt Service Coverage Ratio
as of the Cut-off Date or having a Debt Service Coverage Ratio that is less
than 1.00x (or, with respect to Loan No. 55, 0.9x), (ii) Loans as to which any
required inspection of the related Mortgaged Property conducted by the
Servicer indicates a problem that the Servicer determines can reasonably be
expected to materially adversely affect the cash flow generated by such
Mortgaged Property, (iii) Loans which have come to the Servicer's attention in
the performance of its duties under this Agreement, that (A) any tenant
occupying 25% or more of the space in the related Mortgaged Property has
vacated (without being replaced by a comparable tenant and lease) or been the
subject of bankruptcy or similar proceedings or (B) relate to a Borrower or an
Affiliate that is the subject of a bankruptcy or similar proceeding, (iv)
Loans that are at least 30 days delinquent in payment, and (v) Loans that are
within 60 days of maturity.
The Special Servicer shall report to the Servicer any of the
foregoing events promptly upon the Special Servicer having knowledge of such
event. In addition, in connection with their servicing of the Loans, the
Servicer and the Special Servicer shall provide to each other and to the
Trustee written notice of any event that comes to their knowledge with respect
to a Loan or REO Property that the Servicer or the Special Servicer,
respectively, determines, in accordance with Servicing Standard, would have a
material adverse effect on such Loan or REO Property, which notice shall
include an explanation as to the reason for such material adverse effect.
(f) By 4:00 p.m., New York City time, on the first Business Day
after each Determination Date, the Special Servicer shall deliver, or cause to
be delivered, to the Servicer and, upon the request of the Trustee, the
Depositor or any Rating Agency, to any such requesting party, the following
reports with respect to the Specially Serviced Loans (and, if applicable, the
related REO Properties), providing the required information as of such
Determination Date: (i) a Delinquent Loan Status Report; (ii) an Historical
Loss Estimate Report; (iii) an Historical Loan Modification Report; (iv) an
REO Status Report; and (v) Comparative Financial Status Reports with respect
to all Specially Serviced Loans. Such reports shall be presented in writing
and on a computer readable medium in a format reasonably acceptable to the
Servicer and the Special Servicer.
(g) The Special Servicer shall deliver or cause to be delivered to
the Servicer and, upon the request of the Trustee, the Depositor, or Rating
Agency, to any such requesting party, the following materials, in each case to
the extent that such materials or the information on which they are based have
been received by the Special Servicer:
(i) Annually, on or before April 30 of each year,
commencing in April 1999, with respect to each Specially Serviced
Loan and REO Loan, an Operating Statement Analysis, both in written
form and in electronic format reasonably acceptable to the Servicer,
the Special Servicer and the Trustee for the related Mortgaged
Property or REO Property as of the end of the preceding calendar
year, together with copies of the operating statements and rent rolls
for the related Mortgaged Property or REO Property as of the end of
the preceding calendar year. The Special Servicer shall use its best
reasonable efforts (but shall not be required to institute
litigation) to obtain said annual operating statements and rent rolls
with respect to each Mortgaged Property constituting security for a
Specially Serviced Loan and each REO Property, which efforts shall
include sending a letter to the related Borrower or other appropriate
party each quarter (followed up with telephone calls) requesting such
annual operating statements and rent rolls until they are received.
(ii) The Special Servicer shall maintain an Operating
Statement Analysis report for each Mortgaged Property securing a
Specially Serviced Loan and REO Property. The Operating Statement
Analysis, both in written form and in electronic format reasonably
acceptable to the Servicer, the Special Servicer and the Trustee, for
each Mortgaged Property which constitutes security for a Specially
Serviced Loan or is a REO Property shall be updated by the Special
Servicer and delivered to the Servicer within ten days after receipt
by the Special Servicer of updated operating statements for each such
Mortgaged Property. The Special Servicer will use any operating
statements received with respect to any Mortgaged Property which
constitutes security for a Specially Serviced Loan or is a REO
Property to update the Operating Statement Analysis report for such
Mortgaged Property, such updates shall be completed and copies
thereof sent to the Servicer within ten days after receipt of the
necessary information.
(h) The Servicer and the Special Servicer hereby agree to deliver to
each Rating Agency any information such Rating Agency may reasonably request.
The Trustee shall be entitled to rely conclusively on and shall not be
responsible for the content or accuracy of any information provided to it by
the Servicer or the Special Servicer pursuant to this Agreement.
SECTION 3.13. Annual Statement as to Compliance.
---------------------------------
The Servicer and the Special Servicer (the "reporting person") each
shall deliver to the Trustee, the Depositor and to the Rating Agencies on or
before April 15 of each year, beginning with April 15, 1999, an Officer's
Certificate stating, as to each signatory thereof, (i) that a review of the
servicing operations of the reporting person during the preceding calendar
year (or such shorter period from the Closing Date to the end of the related
calendar year) and of its performance under this Agreement has been made under
such officer's supervision, (ii) that, to the best of such officer's
knowledge, based on such review, the reporting person has fulfilled all of its
obligations under this Agreement in all material respects throughout such year
(or such shorter period), or, if there has been a material default in the
fulfillment of any such obligation, specifying each such default known to such
officer, the nature and status thereof and what action it proposes to take
with respect thereto, (iii) that, to the best of such officer's knowledge,
each related sub-servicer has fulfilled its obligations under its
sub-servicing agreement in all material respects, or, if there has been a
material default in the fulfillment of such obligations, specifying each such
default known to such officer and the nature and status thereof, and (iv)
whether it has received any notice regarding qualification, or challenging the
status, of any REMIC created hereunder as a REMIC from the IRS or any other
governmental agency or body.
SECTION 3.14. Reports by Independent Public Accountants.
-----------------------------------------
On or before April 15 of each year, beginning with April 15, 1999,
the Servicer and the Special Servicer (the "reporting person") each at the
reporting person's expense shall cause a firm of nationally recognized
Independent public accountants (who may also render other services to the
reporting person) which is a member of the American Institute of Certified
Public Accountants to furnish a statement (an "Accountant's Statement") to the
Trustee, the Depositor and the Rating Agencies, to the effect that such firm
has examined the servicing operations of the reporting person for the previous
calendar year (or portions thereof) and that, on the basis of such examination
conducted substantially in compliance with the Uniform Single Attestation
Program ("USAP") for Mortgage Bankers or the Audit Program for Mortgages (the
"Audit Program") serviced for FHLMC, such firm confirms that the Servicer or
the Special Servicer, as the case may be, complied with the minimum servicing
standards identified in USAP or the Audit Program, in all material respects,
except for such significant exceptions or errors in records that, in the
opinion of such firm, the USAP or the Audit Program requires it to report.
In rendering such statement, such firm may rely, as to matters
relating to direct servicing of mortgage loans by Sub-Servicers, upon
comparable statements for examinations conducted substantially in compliance
with the Uniform Single Audit Program for Mortgage Bankers (rendered within
one year of such statement) of independent public accountants with respect to
the related Sub-Servicer. Each reporting person shall obtain from the related
accountants, or shall prepare, an electronic version of each Accountant's
Statement and provide such electronic version to the Trustee for filing in
accordance with the procedures set forth in Section 3.28 hereof. With respect
to any electronic version of an Accountant's Statement prepared by the
reporting person, the reporting person shall receive written confirmation from
the related accountants that such electronic version is a conformed copy of
the original Accountant's Statement.
SECTION 3.15. Access to Certain Information.
-----------------------------
Each of the Servicer and the Special Servicer shall provide or cause
to be provided to any Certificateholder or Certificate Owner that is, or is
affiliated with, a federally insured financial institution, the Trustee, the
Depositor, each Rating Agency, to the Servicer, or to the Special Servicer, as
applicable, and to the OTS, the FDIC, the Federal Reserve Board and the
supervisory agents and examiners of such boards and such corporations, and any
other federal or state banking or insurance regulatory authority that may
exercise authority over any Certificateholder, access to any documentation
regarding the Loans and the Trust Fund within its control which may be
required by this Agreement or by applicable law.
Such access shall be afforded without charge (except that the
Servicer and the Special Servicer may charge a reasonable fee for copies and
out-of-pocket costs) but only upon reasonable prior written request and during
normal business hours at the offices of the Servicer or the Special Servicer,
as the case may be, designated by it. Nothing in this Section 3.15 shall
detract from the obligation of the Servicer and the Special Servicer to
observe any applicable law prohibiting disclosure of information with respect
to the Mortgagors, and the failure of the Servicer or the Special Servicer to
provide access as provided in this Section 3.15 as a result of such obligation
shall not constitute a breach of this Section 3.15. The Servicer and the
Special Servicer may each deny any of the foregoing persons access to
confidential information or any intellectual property which the Servicer or
the Special Servicer is restricted by license or contract from disclosing.
Notwithstanding the foregoing, the Servicer and the Special Servicer shall
maintain separate from such confidential information and intellectual
property, all documentation regarding the Loans that is not confidential.
SECTION 3.16. Title to REO Property; REO Account.
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(a) If title to any REO Property is acquired, the deed or
certificate of sale shall be issued to the Trustee (or its nominee) on behalf
of the Certificateholders. The Special Servicer, on behalf of the Trust Fund,
shall sell any REO Property within three years after the Trust Fund acquires
ownership of such REO Property for purposes of Section 860G(a)(8) of the Code,
unless the Special Servicer either (i) is granted an extension of time (an
"REO Extension") by the Internal Revenue Service to sell such REO Property or
(ii) obtains for the Trustee and the Servicer an Opinion of Counsel (the cost
of which shall be paid as a Servicing Advance), addressed to the Trustee and
the Servicer, to the effect that the holding by the Trust Fund of such REO
Property after the third anniversary of such acquisition will not result in
the imposition of taxes on "prohibited transactions" of the Trust Fund or any
REMIC created hereunder as defined in Section 860F of the Code or cause any
REMIC created hereunder to fail to qualify as a REMIC for federal or
applicable state tax purposes at any time that any Uncertificated Lower-Tier
Interests, Intermediate-Tier Interests or Certificates are outstanding. If the
Special Servicer is granted the REO Extension or obtains the Opinion of
Counsel contemplated by clause (ii) above, the Special Servicer shall sell
such REO Property within such period longer than three years as is permitted
by such REO Extension or such Opinion of Counsel. Any expense incurred by the
Special Servicer in connection with its being granted the REO Extension or its
obtaining the Opinion of Counsel contemplated by clause (ii) above shall be an
expense of the Trust Fund payable out of the Certificate Account pursuant to
Section 3.05(a).
(b) The Special Servicer shall segregate and hold all funds
collected and received in connection with any REO Property separate and apart
from its own funds and general assets. If an REO Acquisition shall occur, the
Special Servicer shall establish and maintain one or more REO Accounts, held
on behalf of the Trustee in trust for the benefit of the Certificateholders,
for the retention of revenues and other proceeds derived from each REO
Property. The REO Account shall be an Eligible Account. The Special Servicer
shall deposit, or cause to be deposited, in the REO Account, within one (1)
Business Day after receipt, all REO Revenues, Insurance and Condemnation
Proceeds and Liquidation Proceeds received in respect of an REO Property.
Funds in the REO Account may be invested only in Permitted Investments in
accordance with Section 3.06. The Special Servicer shall give notice to the
Trustee and the Servicer of the location of the REO Account when first
established and of the new location of the REO Account prior to any change
thereof.
(c) The Special Servicer shall withdraw from the REO Account funds
necessary for the proper operation, management, leasing, maintenance and
disposition of any REO Property, but only to the extent of amounts on deposit
in the REO Account relating to such REO Property. On each Determination Date,
the Special Servicer shall withdraw from the REO Account and deposit into the
Certificate Account the aggregate of all amounts received in respect of each
REO Property during the most recently ended Due Period, net of any withdrawals
made out of such amounts pursuant to the preceding sentence; provided,
however, that the Special Servicer may retain in such REO Account, in
accordance with the Servicing Standard, such portion of such balance as may be
necessary to maintain a reasonable reserve for repairs, replacements, leasing,
management and tenant improvements and other related expenses for the related
REO Property. In addition, on each Determination Date, the Special Servicer
shall provide the Servicer with a written accounting of amounts deposited in
the Certificate Account on such date.
(d) The Special Servicer shall keep and maintain separate records,
on a property-by-property basis, for the purpose of accounting for all
deposits to, and withdrawals from, the REO Account pursuant to Section 3.16(b)
or (c).
SECTION 3.17. Management of REO Property.
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(a) If title to any REO Property is acquired, the Special Servicer
shall manage, conserve, protect, operate and lease such REO Property for the
benefit of the Certificateholders solely for the purpose of its timely
disposition and sale in a manner that does not cause such REO Property to fail
to qualify as "foreclosure property" within the meaning of Section 860G(a)(8)
of the Code or result in the receipt by the Trust Fund of any "income from
non-permitted assets" within the meaning of Section 860F(a)(2)(B) of the Code.
Subject to the foregoing, however, the Special Servicer shall have full power
and authority to do any and all things in connection therewith as are in the
best interests of and for the benefit of the Certificateholders (as determined
by the Special Servicer in its good faith and reasonable judgment) and,
consistent therewith, shall withdraw from the REO Account, to the extent of
amounts on deposit therein with respect to such REO Property, funds necessary
for the proper operation, management, leasing and maintenance of such REO
Property, including, without limitation:
(i) all Insurance Policy premiums due and payable in respect of such
REO Property;
(ii) all real estate taxes and assessments in respect of
such REO Property that may result in the imposition of a lien
thereon;
(iii) any ground rents in respect of such REO Property, if
applicable; and
(iv) all costs and expenses necessary to maintain and lease
such REO Property.
To the extent that amounts on deposit in the REO Account in respect
of any REO Property are insufficient for the purposes set forth in clauses (i)
through (iv) above with respect to such REO Property, the Servicer shall
advance from its own funds, as a Servicing Advance, such amount as is
necessary for such purposes unless (as evidenced by an Officer's Certificate
delivered to the Trustee and the Depositor) if such advances would, if made,
constitute Nonrecoverable Servicing Advances. The Special Servicer shall give
the Servicer and the Trustee not less than five Business Days' notice,
together with all information reasonably requested by the Servicer (upon which
the Servicer may conclusively rely) to the extent in the possession of the
Special Servicer or readily obtainable by the Special Servicer before the date
on which the Servicer is requested to make any Servicing Advance with respect
to an REO Property; provided, however, that only two Business Days' notice
shall be required in respect of Servicing Advances required to be made on an
urgent or emergency basis (which may include, without limitation, Servicing
Advances required to make tax or insurance payments).
(b) Without limiting the generality of the foregoing, the Special
Servicer shall not:
(i) permit the Trust Fund to enter into, renew or extend
any New Lease with respect to any 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 any REO
Property, other than the repair or maintenance thereof or the
completion of a building or other improvement thereon, and then only
if more than 10% of the construction of such building or other
improvement was completed before default on the related Loan became
imminent, all within the meaning of Section 856(e)(4)(B) of the Code;
or
(iv) Directly Operate, or allow any other Person, other than
an Independent Contractor, to Directly Operate, any REO Property on
any date more than 90 days after its Acquisition Date;
unless, in any such case, the Special Servicer has obtained an Opinion of
Counsel (the cost of which shall be paid by the Servicer as a Servicing
Advance) 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 at any time that it is held by the Trust Fund, in which
case the Special Servicer may take such actions as are specified in such
Opinion of Counsel. Except as limited above in this Section 3.17 and by
Section 3.17(c), the Special Servicer shall be permitted to cause the Trust
Fund to earn "net income from foreclosure property," subject to the Servicing
Standard.
(c) The Special Servicer shall contract with any Independent
Contractor for the operation and management of any REO Property within 90 days
of the Acquisition Date thereof, provided that:
(i) the terms and conditions of any such contract may not
be inconsistent herewith and shall reflect an agreement reached at
arm's length;
(ii) the fees of such Independent Contractor (which shall be
an expense of the Trust Fund) shall be reasonable and customary in
light of the nature and locality of the Mortgaged Property;
(iii) any such contract shall require, or shall be
administered to require, that the Independent Contractor (A) pay all
costs and expenses incurred in connection with the operation and
management of such REO Property, including, without limitation, those
listed in subsection (a) hereof, and (B) remit all related revenues
collected (net of its fees and such costs and expenses) to the
Special Servicer upon receipt;
(iv) none of the provisions of this Section 3.17(c) relating
to any such contract or to actions taken through any such Independent
Contractor shall be deemed to relieve the Special Servicer of any of
its duties and obligations hereunder with respect to the operation
and management of any such REO Property; and
(v) the Special Servicer shall be obligated with respect
thereto to the same extent as if it alone were performing all duties
and obligations in connection with the operation and management of
such REO Property.
The Special Servicer shall be entitled to enter into any agreement
with any Independent Contractor performing services for it related to its
duties and obligations hereunder for indemnification of the Special Servicer
by such Independent Contractor, and nothing in this Agreement shall be deemed
to limit or modify such indemnification.
SECTION 3.18. Sale of Defaulted Loans and REO Properties.
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(a) Each of the Servicer and the Special Servicer may sell or
purchase, or permit the sale or purchase of, a Defaulted Loan or REO Property
only on the terms and subject to the conditions set forth in this Section 3.18
or as otherwise expressly provided in or contemplated by Section 2.03(b) and
Section 9.01.
(b) If any Loan becomes a Defaulted Loan and the Special Servicer
has determined in good faith that such Defaulted Loan will become subject to
foreclosure proceedings, the Special Servicer shall promptly so notify in
writing the Trustee and the Servicer. The Special Servicer (or the Servicer,
if the Special Servicer does not exercise its option, or the Directing
Certificateholder, if the Servicer does not exercise its option) may at its
option purchase such Defaulted Loan from the Trust Fund, at a price equal to
the Purchase Price. The Purchase Price for any Defaulted Loan purchased
hereunder shall be deposited into the Certificate Account, and the Trustee,
upon receipt of an Officer's Certificate from the Special Servicer to the
effect that such deposit has been made, shall release or cause to be released
to the Special Servicer, the Servicer or the Directing Certificateholder, as
the case may be, the related Mortgage File, and shall execute and deliver such
instruments of transfer or assignment, in each case without recourse, as shall
be necessary to vest in the Special Servicer, the Servicer or the Directing
Certificateholder (in that order), as the case may be, ownership of such
Defaulted Loan.
(c) The Special Servicer may offer to sell any Defaulted Loan not
otherwise purchased by the Special Servicer, the Servicer or the Directing
Certificateholder pursuant to subsection (b) above, if and when the Special
Servicer determines, consistent with the Servicing Standard, that such a sale
would produce a greater recovery on a present value basis than would
liquidation of the related Mortgaged Property. Such offering shall be made in
a commercially reasonable manner for a period of not less than 20 days or more
than 90 days. The Special Servicer shall accept the highest cash bid received
from any Person for such Defaulted Loan in an amount at least equal to the
Purchase Price therefor; provided, however, that in the absence of any such
bid, the Special Servicer shall accept the highest cash bid received from any
Person that is determined by the Special Servicer to be a fair price for such
Defaulted Loan. In the absence of any bid determined as provided below to be
fair, the Special Servicer shall proceed with respect to such Defaulted Loan
in accordance with Section 3.09.
The Special Servicer shall use reasonable efforts to solicit bids for
each REO Property in such manner as will be reasonably likely to realize a
fair price within the time period provided for by Section 3.16(a). Such
solicitation shall be made in a commercially reasonable manner for a period of
not less than 90 days or more than 270 days. The Special Servicer shall accept
the highest cash bid received from any Person for such REO Property in an
amount at least equal to the Purchase Price therefor; provided, however, that
in the absence of any such bid, the Special Servicer shall accept the highest
cash bid received from any Person that is determined by the Special Servicer
to be a fair price for such REO Property. If the Special Servicer reasonably
believes that it will be unable to realize a fair price for any REO Property
within the time constraints imposed by Section 3.16(a), then the Special
Servicer shall dispose of such REO Property upon such terms and conditions as
the Special Servicer shall deem necessary and desirable to maximize the
recovery thereon under the circumstances and, in connection therewith, shall
accept the highest outstanding cash bid, regardless of from whom received. If
the Special Servicer determines with respect to any REO Property that the
offers being made with respect thereto are not in the best interests of the
Certificateholders and that the end of the three-year period referred to in
Section 3.16(a) with respect to such REO Property is approaching, the Special
Servicer shall seek an extension of such three-year period in the manner
described in Section 3.16(a); provided, however, that the Special Servicer
shall use its best efforts, consistent with the Servicing Standard, to sell
any REO Property prior to three years prior to the Rated Final Distribution
Date.
The Special Servicer shall give the Trustee and the Servicer not less
than three Business Days' prior written notice of its intention to sell any
Defaulted Loan or REO Property. No Interested Person shall be obligated to
submit a bid to purchase any Defaulted Loan or REO Property, and
notwithstanding anything to the contrary herein, neither the Trustee, in its
individual capacity, nor any of its Affiliates may bid for or purchase any
Defaulted Loan or any REO Property pursuant hereto.
(d) Whether any cash bid constitutes a fair price for any Defaulted
Loan or REO Property, as the case may be, for purposes of Section 3.18(c),
shall be determined by the Special Servicer, if the highest bidder is a Person
other than an Interested Person, and by the Trustee, if the highest bidder is
an Interested Person. In determining whether any bid received from an
Interested Person represents a fair price for any Defaulted Loan or any REO
Property, the Trustee may conclusively rely on the opinion of an Appraiser or
other expert in real estate matters retained at the expense of the Trust Fund
by (i) the Servicer, if such Interested Person is the Special Servicer or an
Affiliate thereof or (ii) the Special Servicer, in any other case. In
determining whether any bid constitutes a fair price for any Defaulted Loan or
any REO Property, such Appraiser or other expert in real estate matters shall
be instructed to take into account, as applicable, among other factors, the
period and amount of any delinquency on the affected Defaulted Loan, the
occupancy level and physical condition of the Mortgaged Property or REO
Property, the state of the local economy and the obligation to dispose of any
REO Property within the time period specified in Section 3.16(a). The Purchase
Price for any Defaulted Loan or REO Property shall in all cases be deemed a
fair price.
(e) Subject to subsections (a) through (d) above, the Special
Servicer shall act on behalf of the Trustee in negotiating and taking any
other action necessary or appropriate in connection with the sale of any
Defaulted Loan or REO Property, and the collection of all amounts payable in
connection therewith. Any sale of a Defaulted Loan or any REO Property shall
be final and without recourse to the Trustee or the Trust Fund, except as
shall be customary in deeds of real property and if such sale is consummated
in accordance with the terms of this Agreement, neither the Special Servicer
nor the Trustee shall have any liability to any Certificateholder with respect
to the purchase price therefor accepted by the Special Servicer or the
Trustee.
SECTION 3.19. Additional Obligations of the Servicer and Special
Servicer; Inspections; Appraisals.
(a) The Servicer (or, with respect to each Specially Serviced Loan
and REO Property and each Loan described in Section 3.19(c) below, the Special
Servicer) shall physically inspect or cause to be physically inspected (at its
own expense) each Mortgaged Property at such times and in such manner as are
consistent with the Servicing Standard, but in any event shall inspect each
Mortgaged Property (A) with a Stated Principal Balance of $3,000,000 or more
at least once every 12 months and (B) with a Stated Principal Balance of less
than $3,000,000 at least once every 24 months, in each case commencing in
December 1998 (or at such lesser frequency as each Rating Agency shall have
confirmed in writing to the Servicer, will not result a downgrade,
qualification or withdrawal of the then current ratings assigned to any Class
of the Certificates) and (C) if the Loan (i) becomes a Specially Serviced
Loan, (ii) has a Debt Service Coverage Ratio of less than 1.0x or (iii) is
delinquent for 60 days as soon as practicable and thereafter at least once
every 12 months for so long as such condition exists. The Servicer or Special
Servicer, as applicable, shall send to the Rating Agencies, within 20 days of
completion, each inspection report for any Significant Loans.
(b) With respect to each Loan that allows the Special Servicer (on
behalf of the Trust Fund) to terminate, or cause the related Borrower to
terminate, the related Manager upon the occurrence of certain events specified
in such Loan, the Special Servicer shall enforce the Trustee's rights with
respect to the Manager under the related Loan and Management Agreement,
provided, that, if such right accrues under the related Loan or Management
Agreement only because of the occurrence of the related Anticipated Repayment
Date, if any, the Special Servicer may in its sole discretion, in accordance
with the Servicing Standard, waive such right with respect to such date. If
the Special Servicer is entitled to terminate the Manager, the Special
Servicer shall promptly give notice to the Directing Certificateholder and
each Rating Agency. In accordance with the Servicing Standard, the Special
Servicer shall cause the Borrower to terminate the Manager, and to recommend a
Successor Manager (meeting the requirements set forth below) only if the
Special Servicer determines in its reasonable discretion that such termination
is not likely to result in successful litigation against the Trust Fund by
such Manager or the related Borrower, or create a defense to the enforcement
of remedies under such Loan.
For any Significant Loan, the Special Servicer shall effect such
termination only if the Special Servicer has in the case of any Specially
Serviced Loan received a written confirmation from each of the Rating Agencies
that the appointment of such Successor Manager would not cause such Rating
Agency to withdraw, downgrade or qualify any of the then-current ratings on
the Certificates. If a Manager is otherwise terminated or resigns under the
related Loan or Management Agreement and the related Borrower does not appoint
a Successor Manager, the Special Servicer shall use its best efforts to retain
a Successor Manager (or the recommended Successor Manager, if any) on terms
substantially similar to the Management Agreement or, failing that, on terms
as favorable to the Trust Fund as can reasonably be obtained by the Special
Servicer. For the purposes of this paragraph, a "Successor Manager" shall be a
professional management corporation or business entity reasonably acceptable
to the Special Servicer which (i) manages, and is experienced in managing,
other comparable commercial properties, (ii) will not result in a downgrade,
qualification or withdrawal of the then current ratings assigned to the
Certificates by each Rating Agency, as confirmed by such Rating Agency in
writing, and (iii) otherwise satisfies any criteria set forth in the Mortgage
and related documents.
(c) The Special Servicer shall be required to have received any
Appraisal required in connection with an Appraisal Reduction Event within 60
days after the occurrence of such Appraisal Reduction Event (or the date of
such Appraisal Reduction Event if the time period between (i) the occurrence
of the event that, with the passage of time, would become such Appraisal
Reduction Event and (ii) such Appraisal Reduction Event exceeds 60 days). Upon
receipt, the Special Servicer shall send a copy of such Appraisal to the
Certificate Owners of the Controlling Class; provided, however, that as to
each such Appraisal, if beneficial ownership of the Controlling Class resides
in more than one Certificate Owner, the Special Servicer shall be responsible
only for the expense of providing the first such copy thereof and shall be
entitled to reimbursement from the Trust Fund for the expense of any
additional copies so provided. If neither a required Appraisal is received,
nor an internal valuation completed, by such date, or if, with respect to any
Loan with a Stated Principal Balance of $2,000,000 or less, the Special
Servicer has elected not to obtain an Appraisal or perform an internal
valuation, the Appraisal Reduction for such Loan shall be conclusively
established to be 35% of the Stated Principal Balance of such Loan as of the
date of the related Appraisal Reduction Event. On the first Determination Date
occurring on or after the delivery of such Appraisal or the completion of such
internal valuation, the Special Servicer shall calculate and report to the
Servicer, and the Servicer shall report to the Trustee, the Appraisal
Reduction taking into account such Appraisal or internal valuation. The
Servicer may conclusively rely on any report by the Special Servicer of an
Appraisal Reduction.
(d) With respect to each Loan as to which an Appraisal Reduction
Event has occurred (unless such Loan has become a Corrected Loan and has
remained current for (x) twelve consecutive Monthly Payments (in the case of
any Loan other than the United Artists Loan) or (y) two consecutive Monthly
Payments (in the case of the United Artists Loan), in each case, for such
purposes, taking into account any amendment or modification of such Loan) and
with respect to which no other Appraisal Reduction Event has occurred and is
continuing, the Special Servicer shall, within 30 days of each annual
anniversary of such Appraisal Reduction Event, order an Appraisal (which may
be an update of a prior Appraisal), or with respect to any Loan with an
outstanding principal balance less than $2,000,000, perform an internal
valuation or obtain an Appraisal (which may be an update of a prior
Appraisal), the cost of which shall be paid by the Servicer as a Servicing
Advance. Upon receipt, the Special Servicer shall send a copy of such
Appraisal to the Certificate Owners of the Controlling Class; provided,
however, that as to each such Appraisal, if beneficial ownership of the
Controlling Class resides in more than one Certificate Owner, the Special
Servicer shall be responsible only for the expense of providing the first such
copy thereof and shall be entitled to reimbursement from the Trust Fund for
the expense of any additional copies so provided. Based upon such Appraisal or
internal valuation or percentage calculation of the Appraisal Reduction
described in the preceding paragraph, as the case may be, the Special Servicer
shall redetermine and report to the Trustee and the Servicer the amount of the
Appraisal Reduction with respect to such Loan, and such redetermined Appraisal
Reduction shall replace the prior Appraisal Reduction with respect to such
Loan. Notwithstanding the foregoing, the Special Servicer will not be required
to obtain an Appraisal or perform an internal valuation, as the case may be,
with respect to a Loan which is the subject of an Appraisal Reduction Event if
the Special Servicer has obtained an Appraisal with respect to the related
Mortgaged Property within the 12-month period immediately prior to the
occurrence of such Appraisal Reduction Event. Instead, the Special Servicer
may use such prior Appraisal in calculating any Appraisal Reduction with
respect to such Loan.
With respect to each Loan as to which an Appraisal Reduction Event
has occurred and which has become a Corrected Loan and has remained current
for (x) twelve consecutive Monthly Payments (in the case of any Loan other
than the United Artists Loan) or (y) two consecutive Monthly Payments (in the
case of the United Artists Loan), in each case, for such purposes, taking into
account any amendment or modification of such Loan, and with respect to which
no other Appraisal Reduction Event has occurred and is continuing, the Special
Servicer may within 30 days after the date of such twelfth Monthly Payment or
such second Monthly Payment, as applicable, order an Appraisal (which may be
an update of a prior Appraisal), or with respect to any Loan with an
outstanding principal balance less than $2,000,000, perform an internal
valuation or obtain an Appraisal (which may be an update of a prior
Appraisal), the cost of which shall be paid by the Servicer as a Servicing
Advance. Based upon such Appraisal or internal valuation, the Special Servicer
shall redetermine and report to the Trustee and the Servicer the amount of the
Appraisal Reduction with respect to such Loan and such redetermined Appraisal
Reduction shall replace the prior Appraisal Reduction with respect to such
Loan.
SECTION 3.20. Modifications, Waivers, Amendments and Consents.
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(a) (i) Subject to the provisions of this Section 3.20, the Servicer
and the Special Servicer may, on behalf of the Trustee, agree to any
modification, waiver or amendment of any term of any Loan without the consent
of the Trustee or any Certificateholder.
(ii) For any Mortgage Loan other than a Specially Serviced Mortgage
Loan and subject to the rights of the Special Servicer set forth below,
the Servicer shall be responsible subject to the other requirements of
this Agreement with respect thereto, for any request by a Borrower for
the consent of the mortgagee or a modification, waiver or amendment of
any term thereof, provided that such consent or modification, waiver or
amendment would not affect the amount or timing of any of the payment
terms of such Mortgage Loan, result in the release of the related
Borrower from any material term thereunder, waive any rights thereunder
with respect to any guarantor thereof or relate to the release or
substitution of any material collateral for such Mortgage Loan. To the
extent consistent with the foregoing, the Servicer shall be responsible
for the following:
(A) RESERVED;
(B) Approving any waiver affecting the timing of
receipt of financial statements from any Borrower provided
that such financial statements are delivered no less than
quarterly and within 60 days of the end of the calendar
quarter to which such financial statements relate;
(C) Approving routine leasing activity with
respect to leases for less than the lesser of (a) 30,000
square feet and (b) 20% of the related Mortgaged Property;
(D) [RESERVED];
(E) Approving annual budgets for the related
Mortgaged Property, provided that no such budget (1) relates
to a fiscal year in which an Anticipated Repayment Date
occurs, (2) provides for the payment of operating expenses
in an amount equal to more than 110% of the amounts budgeted
therefor for the prior year or (3) provides for the payment
of any material expenses to any affiliate of the Borrower
(other than the payment of a management fee to any property
manager if such management fee is no more than the
management fee in effect on the Cut-off Date);
(F) [RESERVED];
(G) Waiving any provision of a Loan requiring the
receipt of a rating confirmation if such Loan is not a
Significant Loan and the related provision of such Mortgage
Loan does not relate to a "due-on-sale" or
"due-on-encumbrance" clause (which shall be subject to the
terms of Section 3.08 hereof); and
(H) Subject to other restrictions herein regarding
Principal Prepayments, waiving any provision of a Loan
requiring a specified number of days notice prior to a
Principal Prepayment.
(iii) Notwithstanding the foregoing, the Servicer shall not waive,
modify or amend any Loan unless such waiver, modification or
amendment would not constitute a "significant modification" under
Treasury regulation section 1.860G-2(b).
(iv) The Special Servicer shall be responsible for any request by
a Borrower for the consent of the mortgagee and any modification, waiver
or amendment of any term of any Mortgage Loan for which the Servicer is
not responsible, as provided above, or if such consent, request,
modification, waiver or amendment relates to a Loan that is on the most
recent Servicer Watch List, has a Debt Service Coverage Ratio (based
on the most recently received financial statements and calculated
on a trailing twelve month basis) less than the greater of 1.1x or 20%
less than the Debt Service Coverage Ratio as of the Cut-off Date
(unless such Mortgage Loan is a credit lease loan) or with respect
to which an event of default has occurred in the preceding 12 months.
(b) All modifications, waivers or amendments of any Loan shall be
(i) in writing and (ii) effected in accordance with the Servicing Standard.
(c) Neither the Servicer nor the Special Servicer, on behalf of the
Trustee, shall agree or consent to any modification, waiver or amendment of
any term of any Loan that is not a Specially Serviced Loan if such
modification, waiver or amendment would:
(i) affect the amount or timing of any related payment of
principal, interest or other amount (including Prepayment Premiums or
Yield Maintenance Charges, but excluding Penalty Interest and other
amounts payable as additional servicing compensation) payable
thereunder;
(ii) affect the obligation of the related Mortgagor to pay a
Prepayment Premium or Yield Maintenance Charge or permit a Principal
Prepayment during any period in which the related Note prohibits
Principal Prepayments;
(iii) except as expressly contemplated by the related
Mortgage or pursuant to Section 3.09(e), result in a release of the
lien of the Mortgage on any material portion of the related Mortgaged
Property without a corresponding Principal Prepayment in an amount
not less than the fair market value (as determined by an appraisal by
an Appraiser delivered at the expense of the related Mortgagor and
upon which the Servicer and the Special Servicer, as applicable, may
conclusively rely) of the property to be released; or
(iv) in the judgment of the Special Servicer, otherwise
materially impair the security for such Loan or reduce the likelihood
of timely payment of amounts due thereon.
(d) Notwithstanding Sections 3.20(b)(i), 3.20(c)(i) and 3.20(c)(ii),
but subject to Section 3.20(e), the Special Servicer may (i) reduce the
amounts owing under any Specially Serviced Loan by forgiving principal,
accrued interest and/or any Prepayment Premium or Yield Maintenance Charge,
(ii) reduce the amount of the Monthly Payment on any Specially Serviced Loan,
including by way of a reduction in the related Mortgage Rate, (iii) forbear in
the enforcement of any right granted under any Note or Mortgage relating to a
Specially Serviced Loan, (iv) waive Excess Interest if such waiver conforms to
the Servicing Standard and/or (v) accept a Principal Prepayment during any
Lockout Period; provided that the related Borrower is in default with respect
to the Specially Serviced Loan or, in the judgment of the Special Servicer,
such default is reasonably foreseeable.
(e) Neither the Servicer nor the Special Servicer shall consent to,
make or permit (i) any modification with respect to any Loan that would change
the Mortgage Rate, reduce or increase the principal balance (except for
reductions resulting from actual payments of principal) or change the final
Maturity Date of such Loan unless both (A) the related Mortgagor is in default
with respect to the Loan or, in the judgment of the Special Servicer, such
default is reasonably foreseeable and (B) in the sole good faith judgment of
the Special Servicer and in accordance with the Servicing Standard, such
modification would increase the recovery on the Loan to Certificateholders on
a present value basis (the relevant discounting of amounts that will be
distributable to Certificateholders to be performed at the related Mortgage
Rate) or (ii) any modification, waiver or amendment of any term of any Loan
that would either (A) absent a default with respect to the Loan (or absent the
Special Servicer's determination that a default is reasonably foreseeable),
constitute a "significant modification" under Treasury Regulation Section
1.860G-2(b) or (B) cause any REMIC created hereunder to fail to qualify as a
REMIC under the Code or result in the imposition of any tax on "prohibited
transactions" or "contributions" after the Startup Day under the REMIC
Provisions.
Notwithstanding the foregoing, the Special Servicer shall not extend
the date on which any Balloon Payment is scheduled to be due unless (x) the
Special Servicer has obtained an Appraisal of the related Mortgaged Property
(or, with respect to any related Loan with an outstanding principal balance
less than $2,000,000, has performed an internal valuation) in connection with
such extension, which Appraisal or internal valuation supports the
determination of the Special Servicer contemplated by clause (i)(B) of the
immediately preceding paragraph or (y) the related Loan has not been in
default at any time during the twelve-month period preceding the Maturity Date
of such Loan, in which case the Special Servicer, on one occasion only, may
extend the date on which such Balloon Payment is due to a date not more than
60 days after such Maturity Date.
The determination of the Special Servicer contemplated by clause
(i)(B) of the first paragraph of this Section 3.20(e) shall be evidenced by an
Officer's Certificate to such effect delivered to the Trustee and the Servicer
and describing in reasonable detail the basis for the Special Servicer's
determination and the considerations of the Special Servicer forming the basis
of such determination (which shall include but shall not be limited to
information, to the extent available, such as related income and expense
statements, rent rolls, occupancy status and property inspections, and shall
include an Appraisal of the related Loan or Mortgaged Property, the cost of
which Appraisal shall be advanced by the Servicer as a Servicing Advance).
(f) In no event shall the Special Servicer (i) extend the maturity
date of a Loan beyond a date that is three years prior to the Rated Final
Distribution Date; (ii) extend the maturity date of any Loan at an interest
rate less than the lower of (a) the interest rate in effect prior to such
extension or (b) the then prevailing interest rate for comparable loans, as
determined by the Special Servicer by reference to available indices for
commercial mortgage lending; (iii) if the Loan is secured by a ground lease,
extend the maturity date of such Loan beyond a date which is 10 years prior to
the expiration of the term of such ground lease; (iv) reduce the Mortgage Rate
to a rate below the lesser of (x) 7.212% per annum and (y) the then prevailing
interest rate for comparable loans, as determined by the Special Servicer by
reference to available indices for commercial mortgage lending; or (v) defer
interest due on any Loan in excess of 5% of the Stated Principal Balance of
such Loan.
(g) Neither the Servicer nor the Special Servicer may permit or
modify a Loan to permit a voluntary Principal Prepayment of a Loan (other than
a Specially Serviced Loan) on any day other than its Due Date, (i) unless the
Servicer or Special Servicer also collects interest thereon through the Due
Date following the date of such Principal Prepayment, (ii) unless otherwise
permitted under the related Loan documents or (iii) unless such Principal
Prepayment would not result in a Prepayment Interest Shortfall.
(h) The Servicer and the Special Servicer may, as a condition to
granting any request by a Mortgagor for consent, modification, waiver or
indulgence or any other matter or thing, the granting of which is within its
discretion pursuant to the terms of the instruments evidencing or securing the
related Loan and is permitted by the terms of this Agreement, require that
such Mortgagor pay to it (i) as additional servicing compensation, a
reasonable or customary fee for the additional services performed in
connection with such request, and (ii) any related costs and expenses incurred
by it. In no event shall the Special Servicer be entitled to payment for such
fees or expenses unless such payment is collected from the related Mortgagor.
(i) The Special Servicer shall notify the Servicer, any related
Sub-Servicers and the Trustee, in writing, of any modification, waiver or
amendment of any term of any Loan (including fees charged the Mortgagor) and
the date thereof, and shall deliver to the Custodian (with a copy to the
Servicer) for deposit in the related Mortgage File, an original counterpart of
the agreement relating to such modification, waiver or amendment, promptly
(and in any event within ten Business Days) following the execution thereof.
The Special Servicer shall notify the Rating Agencies of any modification,
waiver or amendment of any term of any Significant Loan. Copies of each
agreement whereby any such modification, waiver or amendment of any term of
any Loan is effected shall be made available for review upon prior request
during normal business hours at the offices of the Special Servicer pursuant
to Section 3.15 hereof.
(j) With respect to each Borrower that has been established as a
"bankruptcy-remote entity," the Servicer shall not consent to (x) the
amendment by such Borrower of its organizational documents or (y) any action
that would violate any covenant of such Borrower relating to its status as a
separate or bankruptcy-remote entity. The Servicer shall promptly forward to
the Special Servicer any request received by the Servicer from a Borrower for
any such consent. With respect to each Significant Loan, if the related
Borrower has been established as a "bankruptcy-remote entity," the Special
Servicer shall not consent to (x) the amendment by such Borrower of its
organizational documents or (y) any action that would violate any covenant of
such Borrower relating to its status as a separate or bankruptcy-remote entity
unless the Special Servicer has obtained written confirmation from each Rating
Agency that such amendment or action would not result in a downgrade,
withdrawal or qualification of any rating on a Class of Certificates rated by
such Rating Agency.
SECTION 3.21. Transfer of Servicing Between Servicer and Special
Servicer; Record Keeping; Asset Status Report.
(a) Upon determining that a Servicing Transfer Event has occurred
with respect to any Loan, the Servicer shall immediately give notice thereof
to the Special Servicer, the Trustee and each Rating Agency, shall deliver
copies of the related Mortgage File and Credit File to the Special Servicer
and the Directing Certificateholder and shall use its reasonable best efforts
to provide the Special Servicer with all information, documents and records
(including records stored electronically on computer tapes, magnetic discs and
the like) relating to such Loan that are in the possession of the Servicer or
available to the Servicer without undue burden or expense, and reasonably
requested by the Special Servicer to enable it to assume its functions
hereunder with respect thereto. The Servicer shall use its reasonable best
efforts to comply with the preceding sentence within 5 Business Days of the
occurrence of each related Servicing Transfer Event and in any event shall
continue to act as Servicer and administrator of such Loan until the Special
Servicer has commenced the servicing of such Loan. The Trustee shall deliver
to the Underwriter, the Initial Purchaser and each Holder of a Certificate of
the Controlling Class, a copy of the notice of such Servicing Transfer Event
provided by the Servicer to the Special Servicer pursuant to this Section.
Upon determining that a Specially Serviced Loan (other than an REO
Loan) has become a Corrected Mortgage Loan (provided no additional Servicing
Transfer Event is foreseeable in the reasonable judgment of the Special
Servicer) and that no other Servicing Transfer Event is continuing with
respect thereto, the Special Servicer shall immediately give notice thereof
and shall return the related Mortgage File and Credit File to the Servicer
and, upon giving such notice and returning such Mortgage File and Credit File
to the Servicer, the Special Servicer's obligation to service such Corrected
Loan shall terminate and the obligations of the Servicer to service and
administer such Loan shall re-commence.
(b) In servicing any Specially Serviced Loan, the Special Servicer
will provide to the Trustee originals of documents included within the
definition of "Mortgage File" for inclusion in the related Mortgage File (with
a copy of each such original to the Servicer), and provide the Servicer with
copies of any additional related Loan information including correspondence
with the related Mortgagor.
(c) No later than one Business Day after each Determination Date, by
4:00 p.m. New York City time, the Special Servicer shall deliver to the
Servicer a statement, both written and in computer readable format reasonably
acceptable to the Servicer and the Special Servicer (upon which the Servicer
may conclusively rely) describing, on a loan-by-loan and property-by-property
basis, (1) the information described in clause (vii) of Section 4.02(a) with
respect to each Specially Serviced Loan and the information described in
clause (viii) of Section 4.02(a) with respect to each REO Property, (2) the
amount of all payments, Insurance and Condemnation Proceeds and Liquidation
Proceeds received with respect to each Specially Serviced Loan during the
related Due Period, and the amount of all REO Revenues, Insurance and
Condemnation Proceeds and Liquidation Proceeds received with respect to each
REO Property during the related Due Period, (3) the amount, purpose and date
of all Servicing Advances made by the Servicer with respect to each Specially
Serviced Loan and REO Property during the related Due Period, (4) the
information described in clauses (v), (vii), (viii), (xi), (xvi) and (xvii) of
Section 4.02(a) and (5) such additional information or data relating to the
Specially Serviced Loan and REO Properties as the Servicer reasonably requests
to enable it to perform its responsibilities under this Agreement which is in
the Special Servicer's possession or is reasonably obtainable by the Special
Servicer.
(d) Notwithstanding the provisions of the preceding clause (c), the
Servicer shall maintain ongoing payment records with respect to each of the
Specially Serviced Loan and REO Properties and shall provide the Special
Servicer with any information in its possession required by the Special
Servicer to perform its duties under this Agreement.
(e) No later than 30 days after a Servicing Transfer Event for a
Loan, the Special Servicer shall deliver to each Rating Agency, the Servicer
and the Directing Certificateholder a report (the "Asset Status Report") with
respect to such Loan and the related Mortgaged Property. Such Asset Status
Report shall set forth the following information to the extent reasonably
determinable:
(i) summary of the status of such Specially Serviced Loan;
(ii) a discussion of the legal and environmental
considerations reasonably known to the Special Servicer, consistent
with the Servicing Standard, that are applicable to the exercise of
remedies as aforesaid and to the enforcement of any related
guaranties or other collateral for the related Loan and whether
outside legal counsel has been retained;
(iii) the most current rent roll and income or operating
statement available for the related Mortgaged Property;
(iv) the Appraised Value of the Mortgaged Property together
with the assumptions used in the calculation thereof;
(v) summary of the Special Servicer's recommended
action with respect to such Specially Serviced Loan; and
(vi) such other information as the Special Servicer deems
relevant in light of the Servicing Standard.
If within ten Business Days of receiving an Asset Status Report, the
Directing Certificateholder does not disapprove such Asset Status Report in
writing, the Special Servicer shall implement the recommended action as
outlined in such Asset Status Report; provided, however, that the Special
Servicer may not take any action that is contrary to applicable law or the
terms of the applicable Loan documents. If the Directing Certificateholder
disapproves such Asset Status Report, the Special Servicer shall revise such
Asset Status Report and deliver to the Directing Certificateholder, the Rating
Agencies and the Servicer a new Asset Status Report as soon as practicable,
but in no event later than 30 days after such disapproval.
The Special Servicer shall revise such Asset Status Report as
described above in this Section 3.21(e) until the earlier of (a) the failure
of the Directing Certificateholder to disapprove such revised Asset Status
Report in writing within 10 Business Days of receiving such revised Asset
Status Report; (b) a determination by the Special Servicer as set forth below
or (c) the passage of 60 days from the date of preparation of the first Asset
Status Report. The Special Servicer may, from time to time, modify any Asset
Status Report it has previously delivered and implement such report, provided
such report shall have been prepared, reviewed and not rejected pursuant to
the terms of this Section. Notwithstanding the foregoing, the Special Servicer
(i) may, following the occurrence of an extraordinary event with respect to
the related Mortgaged Property, take any action set forth in such Asset Status
Report before the expiration of a ten (10) Business Day period if the Special
Servicer has reasonably determined that failure to take such action would
materially and adversely affect the interests of the Certificateholders and it
has made a reasonable effort to contact the Directing Certificateholder and
(ii) in any case, shall determine whether any affirmative disapproval by the
Directing Certificateholder described in this paragraph is not in the best
interest of all the Certificateholders pursuant to the Servicing Standard.
Upon making the determination described in subclause (ii) of the
immediately preceding paragraph (but in no event more than 60 days after the
date of preparation of the Asset Status Report), the Special Servicer shall
notify the Trustee of such rejection and deliver to the Trustee a proposed
notice to Certificateholders which shall include a copy of the Asset Status
Report, and the Trustee shall send such notice to all Certificateholders. If
the majority of Certificateholders, as determined by Voting Rights, fail,
within 5 days of the Trustee's sending such notice, to reject such Asset
Status Report, the Special Servicer shall implement the same. If the Asset
Status Report is rejected by a majority of the Certificateholders, the Special
Servicer shall revise such Asset Status Report as described above. The Trustee
shall be entitled to reimbursement from the Trust Fund for the reasonable
expenses of providing such notices.
The Special Servicer shall have the authority to meet with the
Mortgagor for any Specially Serviced Loan and take such actions consistent
with the Servicing Standard and the related Asset Status Report. The Special
Servicer shall not take any action inconsistent with the related Asset Status
Report, unless such action would be required in order to act in accordance
with the Servicing Standard.
No direction of the Directing Certificateholder shall (a) require or
cause the Special Servicer to violate the terms of a Specially Serviced Loan,
applicable law or any provision of this Agreement, including the Special
Servicer's obligation to act in accordance with the Servicing Standard and to
maintain the REMIC status of each REMIC created hereunder, or (b)result in
the imposition of a "prohibited transaction" or "prohibited contribution" tax
under the REMIC Provisions, or (c) expose the Servicer, the Special Servicer,
the Depositor, either of the Mortgage Loan SellerS, the Trust Fund, the
Trustee or their Affiliates, officers, directors, employees or agents to any
claim, suit or liability, or (d) materially expand the scope of the Special
Servicer's or the Servicer's responsibilities under this Agreement.
(f) Upon receiving notice of (i) the filing of a case under any
federal or state bankruptcy, insolvency or similar law or the commencing of
any insolvency, readjustment of debt, marshaling of assets and liabilities or
similar proceedings with respect to a Loan or the related Mortgagor, (ii) the
existence of a material non-payment default or (iii) the request by a
Mortgagor for the amendment or modification of a Loan, the Servicer shall
immediately give notice thereof, and shall deliver copies of the related
Mortgage File and Credit File to the Special Servicer and shall use its
reasonable best efforts to provide the Special Servicer with all information
relating to the Loan and reasonably requested by the Special Servicer to
enable it to negotiate with the related Mortgagor and prepare for any such
proceedings. The Servicer shall use its reasonable best efforts to comply with
the preceding sentence within 5 Business Days of the occurrence of each such
event, and upon receiving such documents and information, the Special Servicer
shall use its reasonable best efforts to cause the related Mortgagor to cure
any default and/or remedy any such event, work out or modify the Loan
consistent with the terms of this Agreement, and/or prepare for such
proceedings. Notwithstanding the foregoing, the occurrence of any of the
above-referenced events shall not in and of itself be considered a Servicing
Transfer Event.
SECTION 3.22. Sub-Servicing Agreements.
------------------------
(a) The Servicer and the Special Servicer may enter into
Sub-Servicing Agreements to provide for the performance by third parties of
any or all of its respective obligations under Articles III and IV hereof;
provided that the Sub-Servicing Agreement: (i) is consistent with this
Agreement in all material respects and requires the Sub-Servicer to comply
with all of the applicable conditions of this Agreement; (ii) provides that if
the Servicer or the Special Servicer shall for any reason no longer act in
such capacity hereunder (including, without limitation, by reason of an Event
of Default), the Trustee or its designee shall thereupon assume or may elect
not to assume all of the rights and, except to the extent they arose prior to
the date of assumption, obligations of the Servicer or Special Servicer, as
applicable under such agreement, or, alternatively, may act in accordance with
Section 7.02 hereof under the circumstances described therein; (iii) provides
that the Trustee for the benefit of the Certificateholders shall be a
third-party beneficiary under such Sub-Servicing Agreement, but that (except
to the extent the Trustee or its designee assumes the obligations of the
Servicer or the Special Servicer, as applicable, thereunder as contemplated by
the immediately preceding clause (ii)) none of the Trust Fund, the Trustee,
any successor Servicer, Special Servicer or any Certificateholder shall have
any duties under such Sub-Servicing Agreement or any liabilities arising
therefrom; (iv) except with respect to the Seller-Servicer Agreement and the
GECLS Sub-Servicing Agreement, permits any purchaser of a Loan or the Trustee
pursuant to this Agreement to terminate such Sub-Servicing Agreement with
respect to such purchased Loan at its option and without penalty; (v) does not
permit the Sub-Servicer any direct rights of indemnification that may be
satisfied out of assets of the Trust Fund; (vi) does not permit the
Sub-Servicer to foreclose on the related Mortgaged Property or consent to the
modification of any Loan without the prior consent of the Servicer or Special
Servicer, as applicable, and (vii) if such Sub-Servicing Agreement is a
Seller-Servicer Agreement or the GECLS Sub-Servicing Agreement, provides that
upon termination of the Trust Fund, the owner of the Loans shall, with respect
to those Loans serviced by each Seller-Servicer or by GE Capital Loan
Services, Inc., enter into a servicing agreement with such Seller-Servicer or
with GE Capital Loan Services, Inc., as applicable, in the form of the related
"Prior Servicing Agreement" (as defined in the Seller-Servicer Agreement or
the GECLS Sub-Servicing Agreement) or shall pay such Seller-Servicer or GE
Capital Loan Services, Inc., as applicable, the termination fee that would be
payable thereunder. Any successor Servicer or Special Servicer hereunder, upon
becoming successor Servicer or Special Servicer, as applicable, shall have the
right to be assigned and shall have the right to assume any Sub-Servicing
Agreements from the predecessor Servicer or Special Servicer, as applicable.
Upon a termination of the Servicer pursuant to this Agreement, the successor
to the Servicer (other than the Trustee or its designee) shall automatically
succeed to the rights and obligations of the prior Servicer under the
Seller-Servicer Agreement and the GECLS Sub-Servicing Agreement, subject to
the termination rights set forth therein, it being understood that any such
succession by the Trustee or its designee shall not be automatic but shall be
in the discretion of the Trustee or such designee.
In addition, each Sub-Servicing Agreement entered into by the
Servicer may provide that the obligations of the Sub-Servicer thereunder shall
terminate with respect to any Loan serviced thereunder at the time such Loan
becomes a Specially Serviced Loan. The Servicer shall deliver to the Trustee
copies of all Sub-Servicing Agreements, and any amendments thereto and
modifications thereof, entered into by it promptly upon its execution and
delivery of such documents. For purposes of this Agreement, the Servicer shall
be deemed to have received any payment when a Sub-Servicer retained by it
receives such payment. The Servicer shall notify the Special Servicer, the
Trustee and the Depositor in writing promptly of the appointment by it of any
Sub-Servicer. The Special Servicer shall notify the Servicer, the Trustee and
the Depositor in writing promptly of the appointment by it of any
Sub-Servicer.
(b) Each Sub-Servicer shall be authorized to transact business in
the state or states in which the related Mortgaged Properties it is to service
are situated, if and to the extent required by applicable law.
(c) As part of its servicing activities hereunder, the Servicer or
the Special Servicer, as applicable, for the benefit of the Trustee and the
Certificateholders, shall (at no expense to the Trustee, the
Certificateholders or the Trust Fund) monitor the performance and enforce the
obligations of each Sub-Servicer under the related Sub-Servicing Agreement.
Such enforcement, including, without limitation, the legal prosecution of
claims, termination of Sub-Servicing Agreements in accordance with their
respective terms and the pursuit of other appropriate remedies, shall be in
such form and carried out to such an extent and at such time as the Servicer
would require were it the owner of the Loans. The Servicer or the Special
Servicer, as applicable, shall have the right to remove a Sub-Servicer
retained by it in accordance with the terms of the related Sub-Servicing
Agreement upon the Events of Defaults and other termination events specified
in the related Sub-Servicing Agreement.
(d) If the Trustee or its designee becomes successor Servicer and
elects to assume the rights and obligations of the Servicer or the Special
Servicer, as applicable, under any Sub-Servicing Agreement, the Servicer or
the Special Servicer, as applicable, at its expense, shall deliver to the
assuming party all documents and records relating to such Sub-Servicing
Agreement and the Loans then being serviced thereunder and an accounting of
amounts collected and held on behalf of it thereunder, and otherwise use
reasonable efforts to effect the orderly and efficient transfer of the
Sub-Servicing Agreement to the assuming party.
(e) Notwithstanding the provisions of any Sub-Servicing Agreement,
each of the Servicer and the Special Servicer represents and warrants that it
shall remain obligated and liable to the Trustee and the Certificateholders
for the performance of its obligations and duties under this Agreement in
accordance with the provisions hereof to the same extent and under the same
terms and conditions as if it alone were servicing and administering the Loans
for which it is responsible, and the Servicer, or the Special Servicer, as
applicable, shall pay the fees of any Sub-Servicer thereunder from its own
funds or, with respect to the Seller-Servicers or GE Capital Loan Services,
Inc., shall permit each to retain its fees from amounts collected by such
Seller-Servicer or GE Capital Loan Services, Inc., as applicable. In no event
shall the Trust Fund bear any termination fee required to be paid to any
Sub-Servicer as a result of such Sub-Servicer's termination under any
Sub-Servicing Agreement.
(f) The Trustee shall furnish to any Sub-Servicer any limited powers
of attorney and other documents necessary or appropriate to enable such
Sub-Servicer to carry out its servicing and administrative duties under any
Sub-Servicing Agreement; provided, however, that the Trustee shall not be held
liable for any negligence or misuse of, any such power of attorney by a
Sub-Servicer, and shall be indemnified by the Sub-Servicer, with respect
thereto.
(g) Except with respect to the Seller-Servicer Agreement and the
GECLS Sub-Servicing Agreement, each Sub-Servicing Agreement shall provide
that, in the event the Trustee or any other Person becomes a successor
Servicer or the Special Servicer, as applicable, the Trustee or such successor
Servicer or the Special Servicer, as applicable, shall have the right to
terminate such Sub-Servicing Agreement without a fee.
(h) Promptly (but in no event later than five Business Days) after
the execution of any Sub-Servicing Agreement, the Servicer shall forward a
copy of such Sub-Servicing Agreement to the Special Servicer, and the Special
Servicer shall forward a copy of such Sub-Servicing Agreement to the Trustee.
The Special Servicer shall comply with the terms of each such Sub-Servicing
Agreement to the extent the terms thereof are not inconsistent with the terms
of this Agreement and the Special Servicer's obligations hereunder.
SECTION 3.23. Representations, Warranties and Covenants of the
Servicer.
(a) The Servicer hereby represents and warrants to the Trustee, for
its own benefit and the benefit of the Certificateholders, and to the
Depositor and the Special Servicer, as of the Closing Date, that:
(i) The Servicer is a national banking association, duly
organized, validly existing and in good standing under the laws of
the United States of America, and the Servicer is in compliance with
the laws of each State in which any Mortgaged Property is located to
the extent necessary to perform its obligations under this Agreement;
(ii) The execution and delivery of this Agreement by the
Servicer, and the performance and compliance with the terms of this
Agreement by the Servicer, will not violate the Servicer's articles
of association and by-laws or constitute a default (or an event
which, with notice or lapse of time, or both, would constitute a
default) under, or result in the breach of, any material agreement or
other instrument to which it is a party or which is applicable to it
or any of its assets, or result in the violation of any law, rule,
regulation, order, judgment or decree to which the Servicer or its
property is subject;
(iii) This Agreement, assuming due authorization, execution
and delivery by the Trustee and the Depositor, constitutes a valid,
legal and binding obligation of the Servicer, enforceable against the
Servicer in accordance with the terms hereof, subject to applicable
bankruptcy, insolvency, reorganization, moratorium and other laws
affecting the enforcement of creditors' rights generally, and general
principles of equity, regardless of whether such enforcement is
considered in a proceeding in equity or at law;
(iv) The Servicer is not in violation with respect to any
law, any order or decree of any court, or any order, regulation or
demand of any federal, state, municipal or governmental agency, which
violations are likely to have consequences that would materially and
adversely affect the condition (financial or other) or operations of
the Servicer or its properties or are likely to have consequences
that would materially and adversely affect its ability to perform its
duties and obligations hereunder;
(v) No litigation is pending or, to the best of the
Servicer's knowledge, threatened against the Servicer which would
prohibit the Servicer from entering into this Agreement or, in the
Servicer's good faith and reasonable judgment, is likely to
materially and adversely affect either the ability of the Servicer to
perform its obligations under this Agreement or the financial
condition of the Servicer;
(vi) The Servicer will examine each Sub-Servicing Agreement
and will be familiar with the terms thereof. Any Sub-Servicing
Agreements will comply with the provisions of Section 3.22;
(vii) No consent, approval, authorization or order of any
court or governmental agency or body is required for the execution,
delivery and performance by the Servicer, or compliance by the
Servicer with, this Agreement or the consummation of the transactions
contemplated by this Agreement, except for any consent, approval,
authorization or order which has not been obtained or cannot be
obtained prior to the actual performance by the Servicer of its
obligations under this Agreement, and which, if not obtained would
not have a materially adverse effect on the ability of the Servicer
to perform its obligations hereunder; and
(viii) The Servicer has full power and authority to enter into
and consummate all transactions contemplated by this Agreement, has
duly authorized the execution, delivery and performance of this
Agreement, and has duly executed and delivered this Agreement.
(ix) The Servicing Fee represents reasonable servicing
compensation, and the Servicing Fee will be treated for tax and
accounting purposes as compensation for servicing the Loans.
(x) The Servicer has examined each Sub-Servicing Agreement
to which it is a party, and shall examine each Sub-Servicing
Agreement to which it intends to become a party, and in each such
case, the terms of such Sub-Servicing Agreements are not, or, in the
case of any Sub-Servicing Agreement to be entered into by the
Servicer at a future date, will not be, materially inconsistent with
the terms of this Agreement.
(xi) Each officer, director, employee, consultant or advisor
of the Servicer that has responsibilities concerning the servicing
and administration of Loans is covered by errors and omissions
insurance in the amounts and with the coverage required by Section
3.07(c). Neither the Servicer nor any officer, director, employee,
consultant or advisor of the Servicer that is involved in the
servicing or administration of Loans has been refused such coverage
or insurance.
(b) The Servicer covenants that by August 31, 1999, any custom-made
software or hardware designed or purchased or licensed by the Servicer and
used by it in the course of the operation or management of, or the compiling,
reporting or generation of data required by this Agreement will not contain
any deficiency (x) in the ability of such software or hardware to identify
correctly or perform calculations or other processing with respect to dates
after August 31, 1999 or (y) that would cause such software or hardware to be
fit no longer for the purpose for which it was intended by reason of changing
the date from 1999 to 2000. The sole remedy available for a breach of the
covenant set forth in this Section 3.23(b) shall be termination of the
Servicer pursuant to Section 7.01(b). The foregoing matters extend and relate
only to the internal functioning of the software and hardware maintained by
the Servicer, and the Servicer shall not be responsible for the accuracy or
integrity of any data or calculations provided to the Servicer by any third
party.
(c) The Servicer covenants that it will maintain the United Artists
Loan Swap Agreement or an equivalent swap agreement (x) with First Union
National Bank so long as First Union National Bank maintains a long-term
counterparty rating of at least "A+" by S&P and at least "Aa3" by Moody's
(and, if at any time rated by Fitch, at least "A+" by Fitch at such time) or
(y) if such rating is downgraded, qualified or withdrawn, with a swap
counterparty whose long-term counterparty rating is at least "A+" or the
equivalent by each Rating Agency.
(d) The representations and warranties set forth in paragraph (a)
above shall survive the execution and delivery of the Agreement. The Servicer
shall indemnify the Trustee and the Trust Fund and hold each of them harmless
against any losses, damages, penalties, fines, forfeitures, and reasonable
legal fees and related costs, judgments, and other out-of-pocket costs and
expenses resulting from any claim, demand, defense or assertion arising from,
or resulting from a material breach of the Servicer's representations and
warranties contained in paragraph (a) above, if such breach has a material
adverse effect on the ability of the Servicer to perform its obligations
hereunder. Such indemnification shall survive any termination or resignation
of the Servicer, and any termination of the Agreement.
SECTION 3.24. Representations, Warranties and Covenants of the
Special Servicer.
(a) The Special Servicer hereby represents and warrants to the
Trustee, for its own benefit and the benefit of the Certificateholders, and to
the Depositor and the Servicer, as of the Closing Date, that:
(i) The Special Servicer is a corporation duly organized,
validly existing and in good standing under the laws of the State of
Florida, and the Special Servicer is in compliance with the laws of
each State in which any Mortgaged Property is located to the extent
necessary to perform its obligations under this Agreement;
(ii) The execution and delivery of this Agreement by the
Special Servicer, and the performance and compliance with the terms
of this Agreement by the Special Servicer, will not violate the
Special Servicer's charter and by-laws or constitute a default (or an
event which, with notice or lapse of time, or both, would constitute
a default) under, or result in the breach of, any material agreement
or other instrument to which it is a party or which is applicable to
it or any of its assets, or result in the violation of any law, rule,
regulation, order, judgment or decree to which the Special Servicer
or its property is subject;
(iii) The Special Servicer has the full power and authority to
enter into and consummate all transactions contemplated by this
Agreement, has duly authorized the execution, delivery and
performance of this Agreement, and has duly executed and delivered
this Agreement;
(iv) This Agreement, assuming due authorization, execution and
delivery by each of the other parties hereto, constitutes a valid,
legal and binding obligation of the Special Servicer, enforceable
against the Special Servicer in accordance with the terms hereof,
subject to (A) applicable bankruptcy, insolvency, reorganization,
moratorium and other laws affecting the enforcement of creditors'
rights generally and (B) general principles of equity, regardless of
whether such enforcement is considered in a proceeding in equity or
at law;
(v) The Special Servicer is not in violation of, and its
execution and delivery of this Agreement and its performance and
compliance with the terms of this Agreement will not constitute a
violation of, any law, any order or decree of any court or arbiter,
or any order, regulation or demand of any federal, state or local
governmental or regulatory authority, which violation, in the Special
Servicer's good faith and reasonable judgment, is likely to affect
materially and adversely either the ability of the Special Servicer
to perform its obligations under this Agreement or the financial
condition of the Special Servicer;
(vi) No litigation is pending or, to the best of the Special
Servicer's knowledge, threatened against the Special Servicer which
would prohibit the Special Servicer from entering into this Agreement
or, in the Special Servicer's good faith and reasonable judgment, is
likely to materially and adversely affect either the ability of the
Special Servicer to perform its obligations under this Agreement or
the financial condition of the Special Servicer;
(vii) Each officer, director or employee of the Special
Servicer that has or, following the occurrence of a Servicing
Transfer Event, would have responsibilities concerning the servicing
and administration of Loans is covered by errors and omissions
insurance in the amounts and with the coverage required by Section
3.07(c). Neither the Special Servicer nor any of its officers,
directors or employees that is or, following the occurrence of a
Servicing Transfer Event, would be involved in the servicing or
administration of Loans has been refused such coverage or insurance;
and
(viii) No consent, approval, authorization or order of any court
or governmental agency or body is required for the execution,
delivery and performance by the Special Servicer, or compliance by
the Special Servicer with, this Agreement or the consummation of the
transactions contemplated by this Agreement, except for any consent,
approval, authorization or order which has not been obtained or
cannot be obtained prior to the actual performance by the Special
Servicer of its obligations under this Agreement, and which, if not
obtained would not have a materially adverse effect on the ability of
the Special Servicer to perform its obligations hereunder.
(ix) The Special Servicing Fee represents reasonable
servicing compensation, and the Special Servicing Fee will be treated
for tax and accounting purposes as compensation for servicing the
Specially Serviced Loans.
(x) The Special Servicer has examined each Sub-Servicing
Agreement to which it is a party, and shall examine each
Sub-Servicing Agreement to which it intends to become a party, and in
each such case, the terms of such Sub-Servicing Agreements are not,
or, in the case of any Sub-Servicing Agreement to be entered into by
the Special Servicer at a future date, will not, be materially
inconsistent with the terms of this Agreement.
(xi) Each officer, director, employee, consultant or advisor
of the Special Servicer that has or, following the occurrence of a
Servicing Transfer Event, would have responsibilities concerning the
servicing and administration of Specially Serviced Loans is covered
by errors and omissions insurance in the amounts and with the
coverage required by Section 3.07(c). Neither the Special Servicer
nor any officer, director, employee, consultant or advisor of the
Special Servicer that is or, following the occurrence of a Servicing
Transfer Event, would be involved in the servicing or administration
of Specially Serviced Loans has been refused such coverage or
insurance.
(b) The Special Servicer covenants that by August 31, 1999, any
custom-made software or hardware designed or purchased or licensed by the
Special Servicer and used by it in the course of the operation or management
of, or the compiling, reporting or generation of data required by this
Agreement will not contain any deficiency (x) in the ability of such software
or hardware to identify correctly or perform calculations or other processing
with respect to dates after August 31, 1999 or (y) that would cause such
software or hardware to be fit no longer for the purpose for which it was
intended by reason of changing the date from 1999 to 2000. The sole remedy
available for a breach of the covenant set forth in this Section 3.24(b) shall
be termination of the Special Servicer pursuant to Section 7.01(b). The
foregoing matters extend and relate only to the internal functioning of the
software and hardware maintained by the Special Servicer, and the Special
Servicer shall not be responsible for the accuracy or integrity of any data or
calculations provided to the Special Servicer by any third party.
(c) The representations and warranties set forth in paragraph (a)
above and the covenant set forth in paragraph (b) above shall survive the
execution and delivery of the Agreement. The Special Servicer shall indemnify
the Trustee and the Trust Fund and hold each of them harmless against any
losses, damages, penalties, fines, forfeitures, legal fees and related costs,
judgments and other costs and expenses resulting from any claim, demand,
defense or assertion based on or grounded upon, or resulting from a material
breach of the Special Servicer's representations and warranties contained in
paragraph (a) above or the covenant set forth in paragraph (b) above. Such
indemnification shall survive any termination or resignation of the Special
Servicer, and any termination of the Agreement.
SECTION 3.25. Construction Loans.
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(a) Applicability. This Section 3.25 shall apply only to Construction
Loans. To the extent of any inconsistency between the provisions of Section
3.25 and the other sections of this Agreement, the provisions of this Section
3.25 shall govern.
(b) Construction Loan Servicing Fee. As compensation for its services
with regard to the Construction Loans, in addition to the Servicing Fee and
other additional servicing compensation provided for herein, the Servicer
shall receive the Construction Loan Servicing Fee with respect to each
Construction Loan in its Permanent Loan Phase. The Construction Loan Servicing
Fee shall be payable to the Servicer monthly on each Servicer Remittance Date
during the Permanent Loan Phase. For payment of applicable Construction Loan
Servicing Fees, the Servicer shall look solely to CVS or, if CVS fails to pay
any such fee, to the Underwriter. In no event shall the Servicer be entitled
to payment of any Construction Loan Servicing Fees from the Trust Fund.
(c) Construction Loan Processing Fees. All Construction Loan
Processing Fees in the nature of assumption fees or modification fees shall be
payable to the Servicer or the Special Servicer, as applicable, in accordance
with the provisions of this Agreement other than this Section 3.25.
(d) Certain Costs and Expenses. Except as expressly provided for
herein, with respect to any Construction Loan the Servicer shall charge the
related Borrower or CVS for any title, survey, engineering, environmental or
related matters, including but not limited to title insurance, datedown title
endorsements, lien waivers and releases and bonding around mechanics' and
materialmen's liens, or, if such Borrower and CVS fail to pay any of the costs
of the foregoing, the Servicer shall apply funds in such Construction Loan's
Construction Funding Sub-Account to pay such costs, and neither the Servicer
nor the Trust Fund shall bear any fees, costs and expenses associated with any
of the same.
(e) Draw Requests. (i) Upon receipt of a Draw Request in the form
attached as Exhibit L hereto that is (x) completed by the Construction
Developer for a Mortgaged Property relating to a Construction Loan and
(y) approved by the CVS Project Manager for such Construction Loan, the
Servicer shall, subject to clauses (iii) through (vi) of this Section 3.25(e)
and Sections 3.25(f) and 3.25(g), wire the requested funds from such
Construction Loan's Construction Funding Sub-Account pursuant to the
instructions contained in such Draw Request, provided that:
(A) there is only one Draw Request per such
Construction Loan per month and such request is submitted on
or about the first of the month;
(B) the signature of such CVS Project Manager
appears on the Draw Request, signifying CVS's approval;
(C) the Servicer has received a title date-down
report from the title company designated by the Servicer
continuing the related title policy to a date no earlier
than five Business Days before the disbursement of the
requested funds;
(D) the total amount requested pursuant to such
Draw Request does not exceed the total amount of funds
available for such Construction Loan in the Construction
Loan Servicing Account after netting out any required
Retainage Funds and the related Construction Loan Interest
Reserve; and
(E) either (1) no default or event of default of
which the Servicer has actual knowledge exists under the
related Loan Documents or (2) notwithstanding the existence
of any such default or event of default, the Special
Servicer instructs the Servicer to honor such Draw Request.
(ii) The Servicer shall order the title date-down report within one
Business Day after receipt from CVS of a completed Draw Request bearing the
signature of the related CVS Project Manager. Except as otherwise provided in
paragraphs (iii) through (vi) of this Section 3.25(e) and Section 3.25(f) and
3.25(g), the Servicer shall wire the requested funds within 5 Business Days
after receipt of such Draw Request, provided that the title datedown report
described in clause (C) of Section 3.25(e)(i) has been received within such
five Business Day period (and the conditions in clauses (A), (B), (D) and (E)
of Section 3.25(e)(i) have also been satisfied), and regardless of any liens
or encumbrances shown by such report. If the title date-down report is not
received within such five Business Day period, then except as otherwise
provided in the following paragraph, the Servicer shall wire the requested
funds within one Business Day after receiving the title date-down report. The
Servicer shall have no responsibility for reviewing any documentation
submitted in connection with a Draw Request other than to verify that the
conditions stated in clauses (A) through (E) of Section 3.25(e)(i) have been
satisfied.
(iii) Apart from determining whether title date-down reports satisfy
the condition stated in clause (C) of Section 3.25(e)(i), the Servicer's sole
responsibility with regard to such reports shall be to forward, by means of
telecopy within one Business Day after receipt thereof (or, if practical, on
the date of such receipt), (A) to CVS, copies of any title date-down report
that indicates any lien or encumbrance not noted in the title policy provided
to the Servicer as part of the Mortgage File for the related Construction Loan
and (B) to the Special Servicer, copies of any such title date-down report
indicating a lien or encumbrance that (x) is not noted in the title policy
provided to the Servicer as part of the Mortgage File for the related
Construction Loan and (y) secures a sum in excess of 10% of the principal
balance of such Construction Loan. If the conditions stated in clauses (A)
through (E) of Section 3.25(e)(i) have been satisfied, the Servicer shall
withhold funding of a Draw Request only if, within two Business Days of the
Servicer's sending such a title datedown report to CVS (or, if applicable, the
Special Servicer), the Servicer receives instructions in writing from CVS (in
the case of any Construction Loan subject to a lien or encumbrance described
in clause (A) of the preceding sentence) or from the Special Servicer (in the
case of any Construction Loan subject to a lien or encumbrance described in
clause (B) of the preceding sentence) that all or a portion of the Draw
Request for which such title date-down report was ordered should not be
funded. If, in the case of a Construction Loan subject to a lien or
encumbrance described in clause (B) of the second preceding sentence, CVS and
the Special Servicer both instruct the Servicer to withhold funding of all or
a portion of a Draw Request, but such instructions differ as to the amount to
be funded, the Servicer shall, absent contrary written instructions from the
Special Servicer, follow those instructions that would result in funding the
smaller amount to the Construction Borrower. The Special Servicer shall
concurrently deliver to the related SubServicer a copy of any instructions
sent by the Special Servicer to the Servicer pursuant to this paragraph.
(iv) If, pursuant to the immediately preceding paragraph, but subject to
the following sentence, the Servicer is instructed by either CVS or the
Special Servicer to withhold funding of such Draw Request, the Servicer shall
comply with such instruction and shall notify CVS or the Special Servicer, as
applicable, that the Servicer has done so. In such event (absent contrary
written instructions from the Special Servicer in the case of any Construction
Loan subject to a lien or encumbrance described in clause (B) of the first
sentence of Section 3.25(e)(iii)), funding of such Draw Request, and of any
subsequent Draw Requests under such Construction Loan, shall not be made until
CVS notifies the Servicer in writing that CVS is satisfied with the state of
title for the applicable Mortgaged Property. To the extent the Special
Servicer wishes to withhold funding of subsequent Draw Requests after the
Special Servicer's review of any title date-down report forwarded to it
pursuant to Section 3.25(e)(iii), regardless of any instructions from CVS, the
Special Servicer shall so notify the Servicer in writing, and shall send a
copy of such notice to the related SubServicer, no later than two Business
Days prior to the first Business Day of the month in which such funding is to
be withheld.
(v) If the Servicer receives a Draw Request that exceeds the total amount
of funds available under the related Construction Loan after netting out any
required Retainage Funds and the related Construction Loan Interest Reserve,
the Servicer shall notify CVS (and, if the amount of such excess is greater
than 10% of such available funds, the Special Servicer) of such fact. In the
case of any Draw Request as to which the Servicer is required to notify the
Special Servicer pursuant to the preceding sentence, the Servicer shall not
fund such Draw Request unless and until it receives written instructions from
the Special Servicer.
(vi) If, in the case of any Draw Request as to which the Servicer is
required to notify CVS pursuant to Section 3.25(e)(v), funds sufficient to
satisfy such Draw Request have not been received by the Servicer from CVS (or
otherwise on behalf of the related Construction Borrower) within 15 days after
the Servicer makes such notification, the Servicer shall notify the Special
Servicer of such fact and shall not fund such Draw Request unless and until it
has received such funds.
(vii) If the Servicer receives a Draw Request that does not conform to
the requirements set forth herein, the Servicer shall return such
nonconforming Draw Request to the CVS Project Manager for the related
Construction Loan along with notice of the specific defect. A copy of such
notice, but not of the Draw Request itself, shall be sent to the related
Construction Borrower. If and when such Draw Request is resubmitted, it shall
be processed by the Servicer as a new Draw Request in the normal course of
business under this Agreement.
(viii) The Servicer shall not be responsible for obtaining or reviewing,
or supplying to the title company, any documentation necessary to obtain
required title date-down reports and title endorsements. The Servicer shall be
entitled to rely on CVS and, if applicable, the Special Servicer to deal with
all issues relating to lien waivers, contractor affidavits, lien releases and
all supporting documentation. The Servicer shall be entitled to rely on the
truth and authenticity of any documentation supplied by the Construction
Borrower, CVS or, if applicable, the Special Servicer in any way related to
the Draw Request process.
(f) Final Draw Request. In addition to the form and documentation
required pursuant to Section 3.25(e) for a Draw Request, the Servicer shall
require the Final Draw Request with respect to any Construction Loan to be
accompanied by the following:
(i) Such documentation, including but not limited to all appropriate
lien waivers, as may be required by the applicable title company in order
to issue a clear title endorsement continuing the title policy insuring a
first lien on the related Mortgaged Property in the full amount of such
Construction Loan without any change in conditions of or exceptions to
the coverage in such title policy;
(ii) valid "Certificate(s) of Occupancy," or applicable equivalents
under the law of the jurisdiction where the related CVS Improvements are
located, issued by all appropriate authorities for the CVS Store built on
such Mortgaged Property;
(iii) a certification from the architect designated in the CSFB
Construction Loan Agreement for such Construction Loan, confirming
completion of the related CVS Improvements in accordance with the related
Project Plans and Specifications;
(iv) a survey showing the as-built project;
(v) a certification from CVS regarding completion and occupancy;
and
(vi) the list of Punch List Items to be completed, the agreed cost
thereof as approved by CVS, and CVS's wiring instructions for the funds
to cover such costs.
If the funds on deposit in a Construction Loan's Construction Funding
Sub-Account (including any Retainage Funds) are sufficient to fund the Final
Disbursement for such Construction Loan, the Servicer shall wire such Final
Disbursement within ten (10) days after receiving all of the required
documentation set forth above. The funds necessary to cover the costs set
forth in the list of Punch List Items shall be wired by the Servicer to CVS
pursuant to the instructions to be delivered by CVS pursuant to clause (vi) of
the immediately preceding paragraph.
(g) Insufficient Funds for Final Draw Request. (i) If a Final Draw
Request as submitted would exceed the total amount of funds on deposit in the
related Construction Loan's Construction Funding Sub-Account (including any
Retainage Funds), the Servicer shall so advise CVS and, if the amount of such
excess is greater than 10% of such total amount, the Special Servicer. In the
case of any Final Draw Request as to which the Servicer is required to notify
the Special Servicer pursuant to the preceding sentence, the Servicer shall
not fund such Final Draw Request unless and until it receives written
instructions from the Special Servicer to fund such Final Draw Request.
(ii) If, in the case of any Final Draw Request as to which the
Servicer is required to notify CVS pursuant to Section 3.25(g)(i), funds
sufficient to satisfy such Final Draw Request have not been received by
the Servicer from CVS (or otherwise on behalf of the related Construction
Borrower) within 15 days after the Servicer makes such notification, the
Servicer shall notify the Special Servicer of such fact and shall not
fund such Final Draw Request unless and until it has received such funds.
(h) Change Orders. The Servicer shall review all change order
requests (each, a "Change Order") to determine whether CVS has certified on
each Change Order for each Construction Loan that such Change Order, when
aggregated with all prior Change Orders for such Construction Loan, would
neither result in an aggregate change of more than ten percent (10%) in the
Construction Budget for the related CVS Improvements nor result in the Project
Budget varying from the related appraisal by more than ten percent (10%). If
CVS has failed to certify the facts in the preceding sentence with respect to
any Change Order, then the Servicer shall so notify the Special Servicer, and
the Special Servicer shall provide written instructions to the Servicer as to
any desired changes in the servicing of such Construction Loan, including, but
not limited to, the processing of subsequent Draw Requests. Unless and until
the Servicer receives contrary instructions from the Special Servicer (a copy
of which instructions shall be forwarded concurrently by the Special Servicer
to the related SubServicer), the Servicer shall continue to process Draw
Requests pursuant to this Section 3.25, notwithstanding the Change Orders and
the resulting changes in the construction costs of the CVS Improvements. The
Servicer shall not be required to perform any Change Order tracking beyond the
scope set forth above.
(i) Inspection. Prior to the Final Disbursement for a Construction
Loan, the Servicer shall conduct or cause to be conducted a limited inspection
of the related Mortgaged Property for the sole and limited purpose of
confirming that a CVS Store has been built at the address of such Mortgaged
Property as provided in the related Loan Documents.
(j) Notice to the Special Servicer. Within ten days after each of
(i) the date of the Final Disbursement for a Construction Loan and (ii) the
Date of Rent Commencement under the related Construction Loan Lease, the
Servicer shall notify the Special Servicer of each such event.
(k) Construction Loan Excess Funds. In the event that after the
Final Disbursement for a Construction Loan is funded pursuant to a Final Draw
Request, there are additional funds allocable to such Construction Loan in the
related Construction Funding Sub-Account (such additional funds, "Construction
Loan Excess Funds"), the Servicer shall wire such funds to the related
Construction Borrower; provided, however, that if the Servicer has actual
knowledge of any default or event of default under the related Loan Documents,
the Servicer shall give the Special Servicer prompt notice thereof, and,
unless and until such default or event of default is cured, such remaining
funds shall be retained in such Construction Funding Sub-Account (to the extent
permitted by such Loan Documents) pending instructions to the Servicer from
(or, if such default or event of default constitutes a Servicing Transfer
Event, action by) the Special Servicer. The Servicer shall follow such
instructions, if any, upon receipt from the Special Servicer.
(l) Construction Loan Servicing Account.
(i) Deposits. The Servicer shall establish and maintain a
Construction Loan Servicing Account, which shall be an Eligible Account,
for all of the Construction Loans. The Servicer shall deposit or cause to
be deposited in the Construction Loan Servicing Account on a daily basis,
or as otherwise required hereunder (unless the Servicer determines in its
good faith judgment that any such deposit should not be made because of a
restrictive endorsement or for any other appropriate reason), and as soon
as possible after, but in any event within one Business Day following,
receipt by the Servicer of the following payments and collections
relating to each Construction Loan:
(A) all Rents from Real Property;
(B) all payments on account of interest on the Construction
Loans, all payments on account of principal, including Principal
Prepayments, on the Construction Loans, and, if applicable, all
related Prepayment Premiums and/or Yield Maintenance Charges;
(C) all Insurance and Condemnation Proceeds and Liquidation
Proceeds received in respect of any Construction Loan or related REO
Property (to the extent permitted or required to be paid to the
Construction Lender pursuant to the terms of the related lease and
the related Loan Documents); and
(D) any amounts required to be deposited by the Servicer
pursuant to Section 3.25(n) in connection with losses incurred with
respect to Permitted Investments of funds held in the Construction
Loan Servicing Account.
(E) any amounts required to be deposited by the Servicer
pursuant to Section 3.07(b) in connection with losses resulting from
a deductible clause in a blanket hazard policy;
(F) any amounts required to be deposited by the Servicer
pursuant to the last paragraph of Section 3.11(a) as a reduction in
the compensation to the Servicer to cover Prepayment Interest
Shortfalls;
(G) any Prepayment Interest Excess to which the Servicer is not
entitled as provided in Section 3.11(a); and
(H) any funds received by the Servicer from CVS for the purpose
of satisfying Draw Requests; and
(I) all other amounts payable to the Construction Lender under
the related Loan Documents, less, however, any amounts payable to
the Servicer for the Servicer's reimbursable costs, which amounts
shall be retained by the Servicer.
(ii) Crediting of Payments. Payments to the Construction Loan
Servicing Account shall be credited on the Business Day on which
immediately available funds are received prior to 1:00 p.m. New York City
time; payments received after 1:00 p.m. New York City time shall be
credited on the next succeeding Business Day. Payments which are made by
check or which are not in the form of immediately available funds shall
not be credited until such funds become immediately available, and with
respect to payments by check such credit shall be provisional until the
item is finally paid by the payor bank.
(iii) Certain Receipts Need Not Be Deposited. The foregoing
requirements for deposits into the Construction Loan Servicing Account
shall be exclusive, it being understood and agreed that, without limiting
the generality of the foregoing, if Penalty Charges and Construction Loan
Processing Fees are received from a Construction Borrower, such amounts
need not be deposited in the Construction Loan Servicing Account by the
Servicer to the extent that the Servicer or the Special Servicer is
entitled to such amounts pursuant to the express provisions of this
Agreement; and, to the extent permitted by applicable law and the related
Loan Documents, the Servicer (or, if applicable in accordance with this
Agreement, the Special Servicer) shall be entitled to retain any such
charges and fees received with respect to the Construction Loans. In the
event that the Servicer deposits in the Construction Loan Servicing
Account any amount not required to be deposited therein, the Servicer may
at any time withdraw such amount therefrom.
(m) Permitted Withdrawals from the Construction Loan Servicing
Account.
The Servicer may make withdrawals from the Construction Loan Servicing
Account only as described below (the order set forth below not constituting an
order of priority for such withdrawals):
(i) on or before each Servicer Remittance Date, to remit the related
Loan Servicing Remittance Amount by wire transfer in immediately
available funds to the Certificate Account;
(ii) to reimburse or pay the Servicer or any third party provider
for any other unpaid items for which the Servicer is entitled to
reimbursement or payment (other than the Construction Loan Servicing Fee)
from the Construction Loan Servicing Account;
(iii) to withdraw any amount deposited into the Construction Loan
Servicing Account that was not required to be deposited therein;
(iv) to make the payments, disbursements and withdrawals
contemplated in Sections 3.25(p)(iii)(B), 3.25(q), 3.25(r)(iii)(B) and
3.25(s); and
(v) to clear and terminate the Construction Loan Servicing Account
following the earlier of (i) the termination of this Agreement and (ii)
the retirement of all Construction Loans.
(n) Investment of Funds in Construction Loan Servicing Account.
With respect to each Construction Loan, the Servicer shall, for the
benefit of the related Construction Borrower, direct any depository
institution maintaining the Construction Loan Servicing Account to invest the
funds in such account in one or more Permitted Investments. All such
investments shall be held to maturity, unless payable on demand. Any
investment of funds in the Construction Loan Servicing Account shall be made
in the name of the related Borrower. The Servicer shall have sole control over
each such investment and, pending Final Disbursement, shall be entitled to
retain, as additional servicing compensation in accordance with
Section 3.11(a), interest and investment income earned in respect of amounts
held in the Construction Loan Servicing Account (but only to the extent of the
Net Investment Earnings with respect to such amounts for any period from any
Distribution Date to the immediately succeeding Servicer Remittance Date) and
provided that the Servicer shall pay or cause to be paid to each Construction
Borrower its allocable share of interest and investment income earned on funds
in the Construction Loan Servicing Account, to the extent required by law or
the terms of the related Construction Loan.
Neither the Servicer nor the Special Servicer shall bear any risk of any
Net Investment Losses incurred from the investment of funds in the
Construction Loan Servicing Account pursuant to this Section and the Servicer
shall in no way be responsible or liable for any such Net Investment Losses.
If the investment of such funds results in any Net Investment Losses, each
Construction Borrower shall be required to fund its allocable share of such
Net Investment Losses to the extent the resulting funds available for the
related Construction Loan are inadequate to complete the construction of the
applicable CVS Improvements or are inadequate to make the interest payments
required from the Construction Loan Interest Reserve.
The Servicer shall maintain continuous possession of any Permitted
Investment of amounts in the Construction Loan Servicing Account to the extent
such investment is either (i) a "certificated security," as such term is
defined in the UCC or (ii) other property in which a secured party may perfect
its security interest by possession under the UCC or any other applicable law.
Possession of any such Permitted Investment by the Servicer shall constitute
possession by the Trustee, as secured party, for purposes of Section 9-305 of
the UCC and any other applicable law. In the event amounts on deposit in the
Construction Loan Servicing Account are at any time invested in a Permitted
Investment payable on demand, the Servicer shall:
(i) consistent with any notice required to be given thereunder,
demand that payment thereon be made on the last day such Permitted
Investment may otherwise mature hereunder in an amount equal to the
lesser of (a) all amounts then payable thereunder and (b) the amount
required to be withdrawn on such date; and
(ii) demand payment of all amounts due thereunder promptly upon
determination by the Servicer or the Trustee, as the case may be, that
such Permitted Investment would not constitute a Permitted Investment in
respect of funds thereafter on deposit in the Construction Loan Servicing
Account.
(o) Sub-Accounts. The Construction Loan Servicing Account shall be
comprised of the following subaccount entries for each Construction Loan: (i)
the Construction Loan Interest Reserve Sub-Account; (ii) the Construction
Funding Sub-Account; and (iii) the Loan Servicing Sub-Account, as provided in
Section 3.25(p), Section 3.25(q) and Section 3.25(r), respectively.
Notwithstanding the preceding sentence, the Servicer, in its sole discretion,
may establish and maintain a separate account in lieu of any Sub-Account, so
long as (i) such separate account is an Eligible Account, (ii) such separate
account bears the same name as the Sub-Account it is replacing (except that the
word "Sub-Account" shall be replaced with the word "Account" in the name of
such separate account), (iii) all the provisions of this Agreement referring
to such Sub-Account are read to apply instead to such separate account and
(iv) all the provisions of this Agreement referring to the Construction Loan
Servicing Account are read to apply instead to one or more of such separate
accounts, as applicable.
(p) Construction Loan Interest Reserve Sub-Account.
(i) Establishment of Sub-Account. Within the Construction Loan
Servicing Account, there shall be established, for each Construction
Loan, an account entry to be designated the "Construction Loan Interest
Reserve Sub-Account."
(ii) Allocation to Sub-Account. The Servicer shall cause to be
allocated to each Construction Loan's Construction Loan Interest Reserve
Sub-Account, when received as to such Construction Loan, that portion of
the related Initial Disbursement Advance designated by the Construction
Lender as the Construction Loan Interest Reserve.
(iii) Disbursements from Sub-Account. Funds in each Construction
Loan Interest Reserve Sub-Account on each Determination Date shall be
disbursed as follows:
(A) If such Determination Date occurs prior to the second Due
Date following the Date of Rent Commencement under the related
Construction Loan Lease, a book-entry transfer of the amount
required by the related Loan Documents to be applied during the
related Due Period as payment on such Construction Loan shall be
made by the Servicer to the related Loan Servicing Sub-Account.
(B) If such Determination Date occurs after the first Due Date
following the Date of Rent Commencement under the related
Construction Loan Lease, any funds remaining in such Construction
Loan Interest Reserve Sub-Account (after giving effect to the making
of any book-entry transfer described in clause (iii)(A) above on
such Determination Date) shall be disbursed by the Servicer in
accordance with such Loan Documents, so long as no default or event
of default of which the Servicer has actual knowledge exists under
such Loan Documents; provided, however, that if the Servicer has
actual knowledge of any such default or event of default, the
Servicer shall give the Special Servicer prompt notice thereof, and,
unless and until such default or event of default is cured, such
remaining funds shall be retained in such Construction Loan Interest
Reserve Sub-Account (to the extent permitted by such Loan Documents)
pending instructions to the Servicer from (or, if such default or
event of default constitutes a Servicing Transfer Event, action by)
the Special Servicer. The Servicer shall follow such instructions,
if any, upon receipt from the Special Servicer.
(q) Construction Funding Sub-Account.
(i) Establishment of Sub-Account. Within the Construction Loan
Servicing Account, there shall be established, for each Construction
Loan, an account entry to be designated the "Construction Funding
Sub-Account."
(ii) Allocation to Sub-Account. With respect to each Construction
Loan, the Servicer shall cause to be deposited into the Construction Loan
Servicing Account, for allocation to such Construction Loan's
Construction Funding Sub-Account, (x) that portion of the related Initial
Disbursement Advance not designated as the Construction Loan Interest
Reserve for such Construction Loan pursuant to Section 3.25(p)(ii) and
(y) any funds received by the Servicer from CVS for the purpose of
satisfying Draw Requests.
(iii) Disbursements from Sub-Account. Funds in each Construction
Funding Sub-Account shall be disbursed as follows:
(A) in connection with any Draw Request or Final Draw Request
for such Construction Loan, the Servicer, subject to and in
accordance with Sections 3.25(e), 3.25(f) and 3.25(g) of this
Agreement, shall disburse to the related Construction Borrower or
its designee an amount equal to such Draw Request or Final Draw
Request from amounts available in such Construction Funding
Sub-Account; and
(B) any Construction Loan Excess Funds shall be disbursed by
the Servicer pursuant to Section 3.25(k) of this Agreement.
(r) Loan Servicing Sub-Account.
(i) Establishment of Sub-Account. Within the Construction Loan
Servicing Account, there shall be established, for each Construction
Loan, an account entry to be designated the "Loan Servicing Sub-Account."
(ii) Allocation to Sub-Account. The Servicer shall cause funds with
respect to a Construction Loan that are deposited into the Construction
Loan Servicing Account in accordance with Sections 3.25(l)(i)(A) through
(I) (after giving effect to any book-entry transfer, from the related
Construction Loan Interest Reserve Sub-Account, of funds in the amount of
the related Interest Reserve Remittance Amount) to be allocated to such
Construction Loan's Loan Servicing Sub-Account.
(iii) Disbursements from Sub-Account. Funds in each Loan Servicing
Sub-Account on each Determination Date shall be disbursed:
(A) by the Servicer to the Certificate Account on or before the
related Servicer Remittance Date, to the extent of the Loan
Servicing Remittance Amount for such Servicer Remittance Date; and
(B) by the Servicer to the related Construction Borrower, so
long as no default or event of default of which the Servicer has
actual knowledge exists under the related Loan Documents, to the
extent of any monies remaining in such Loan Servicing Sub-Account on
each Servicer Remittance Date after paying all of the amounts
described above and after retaining an amount equal to any Rents
from Real Property or other monies received prior to the date such
Rents from Real Property or other monies are due and payable by the
related Tenant; provided, however, that if the Servicer has actual
knowledge of any such default or event of default, the Servicer
shall give the Special Servicer prompt notice thereof, and, unless
and until such default or event of default is cured, such remaining
funds shall be retained in such Loan Servicing Sub-Account (to the
extent permitted by such Loan Documents) pending instructions to the
Servicer from (or, if such default or event of default constitutes a
Servicing Transfer Event, action by) the Special Servicer. The
Servicer shall follow such instructions, if any, upon receipt from
the Special Servicer.
(s) Return of Deposits to Construction Borrower. Following payment
in full of a Construction Loan and any other obligations (including, without
limitation, principal, interest, Prepayment Premiums and/or Yield Maintenance
Charges, if any, legal fees and expenses) owed by a Construction Borrower, all
collected amounts then held in the Construction Loan Servicing Account in any
of such Construction Loan's SubAccounts, less any amounts owed to the Servicer
relative to such Construction Loan (other than the Construction Loan Servicing
Fee), shall be paid by the Servicer to the Construction Borrower.
(t) Monthly Accounting Reports.
(i) Until (and including) the date of the Final Disbursement, the
Servicer shall prepare, and shall deliver to the Special Servicer and CVS
on each Servicer Remittance Date, monthly accounting reports regarding
the Construction Loans in the forms attached hereto as Exhibit M,
tracking the amounts disbursed and the amounts available, by major budget
item and total, on a LoanbyLoan basis as of the end of the month
preceding such Servicer Remittance Date.
(ii) CVS's report copies shall be sent to CVS at the address
designated by CVS from time to time.
SECTION 3.26. RESERVED.
SECTION 3.27.Limitation on Liability of the Directing Certificateholder.
The Directing Certificateholder shall not have any responsibility or
liability to the Trust Fund or any other Class or Classes of
Certificateholders for any action taken, or for refraining from the taking of
any action, in good faith pursuant to this Agreement, or for errors in
judgment; provided, however, that this provision shall not protect the
Directing Certificateholder against any liability which would otherwise be
imposed by reason of willful misfeasance, bad faith or negligence in the
performance of duties or by reason of grossly negligent disregard of
obligations or duties hereunder. By its acceptance of a Certificate, each
Certificateholder confirms its understanding that the Directing
Certificateholder may take actions that favor the interests of one or more
Classes of the Certificates over other Classes of the Certificates and that
the Directing Certificateholder may have special relationships and interests
that conflict with those of Holders of some Classes of the Certificates and,
absent willful misfeasance, bad faith, negligence or negligent disregard of
obligations or duties on the part of the Directing Certificateholder, agrees
to take no action against the Directing Certificateholder as a result of such
a special relationship or conflict.
SECTION 3.28. Reports to the Securities and Exchange Commission; Available
Information.
(a) The Trustee, at its expense, shall prepare and sign, on behalf
of the Depositor, any and all Exchange Act Reports; provided, however, that
the Depositor shall prepare, sign and file with the Commission the initial
Form 8-K relating to the Trust Fund. Each Exchange Act Report shall be
prepared as an exhibit or exhibits to a Form 8-K. Each Exchange Act Report
consisting of an Annual Compliance Report shall be prepared as an exhibit to
an Annual Report on Form 10-K and shall identify the aggregate number of
Holders of Public Certificates and Depository Participants holding positions
in Public Certificates as of January 1 (or the nearest Business Day if such
date is not a Business Day) of the related year.
For each Exchange Act Report, the Servicer and, if applicable, the
Special Servicer, shall prepare (i) manually signed paper versions of their
respective Annual Compliance Reports and (ii) electronic versions of such
reports, which versions shall be prepared as Microsoft Word for Windows files
(or in such other electronic format as to which the Trustee, on the one hand,
and the Servicer or the Special Servicer, as applicable, on the other hand,
may agree).
Exchange Act Reports consisting of (i) a monthly Statement to
Certificateholders shall be filed within ten days after the related
Distribution Date; (ii) a Comparative Financial Status Report, Delinquent Loan
Status Report, Historical Loss Estimate Report, Historical Loan Modification
Report, REO Status Report, Operating Statement Analysis, Servicer Watch List,
or report pursuant to Section 4.02(b) shall be filed within ten days after
each Distribution Date; and (iii) an Annual Compliance Report shall be filed
on or prior to March 15 of each calendar year commencing in 1999. The Trustee
shall file each Exchange Act Report with the Commission by means of the
"EDGAR" system in a manner and in a format required by Regulation S-T.
Manually-signed copies of each Exchange Act Report shall be delivered by
Trustee to the Depositor, Attention: Legal/Compliance/Colleen Graham.
If any Exchange Act Report is incomplete by the date on which such report
is required to be filed under the Exchange Act, the Trustee, or with respect
to any Annual Compliance Report relating to the Servicer, the Servicer, or,
with respect to any Annual Compliance Report relating to the Special Servicer,
the Special Servicer, shall prepare and execute a Form 12b-25 under the
Exchange Act and the Special Servicer shall deliver an electronic version of
such form to the Trustee for filing with the Commission. The Special Servicer
shall deliver the related report in electronic form to the Trustee when such
information is available. The Servicer shall be deemed not to be in default of
Section 3.14 if it fails to deliver a USAP report at the required time
provided that it complies with this paragraph and prepares and executes a Form
12b-25 under the Exchange Act and delivers an electronic version of such form
to the Trustee for filing with the Commission.
None of the Servicer, the Special Servicer and the Trustee shall file a
Form ID with respect to the Depositor. Unless the Trustee receives written
instructions from the Depositor to the contrary, upon receipt of information
from the Trustee indicating that there are fewer than 300 Certificateholders
and/or Depository Participants, in the aggregate, the Trustee shall prepare a
Form 15 relating to the Trust Fund, file such Form 15 with the Commission and
send a copy thereof to the Depositor, Attention: Legal/Compliance/Colleen
Graham.
The Trustee shall solicit any and all proxies of the Certificateholders
whenever such proxies are required to be solicited pursuant to the Exchange
Act.
(b) The Servicer shall, in accordance with such reasonable rules and
procedures as it may adopt, also make available any additional information
relating to the Loans, the Mortgaged Properties or the Borrowers, for review
by the Depositor, the Rating Agencies and any other Persons to whom the
Servicer believes such disclosure is appropriate, in each case except to the
extent doing so is prohibited by applicable law or by the related Loan.
(c) The Servicer and the Special Servicer shall make the following
items available at their respective offices during normal business hours, or
shall send such items to any requesting party at the expense of such
requesting party (other than the Rating Agencies and the Depositor, and except
as otherwise provided in the last sentence of this paragraph) for review by
the Depositor, the Trustee, the Rating Agencies, any Certificateholder, any
Person identified to the Servicer or the Special Servicer, as applicable, by a
Certificateholder as a prospective transferee of a Certificate and any other
Persons to whom the Servicer or the Special Servicer, as applicable, believes
such disclosure to be appropriate: (i) all financial statements, occupancy
information, rent rolls, retail sales information, average daily room rates
and similar information received by the Servicer or the Special Servicer, as
applicable, from each Borrower, (ii) the inspection reports prepared by or on
behalf of the Servicer or the Special Servicer, as applicable, in connection
with the property inspections pursuant to Section 3.19, (iii) any and all
modifications, waivers and amendments of the terms of a Loan entered into by
the Servicer or the Special Servicer, as applicable and (iv) any and all
officer's certificates and other evidence delivered to the Trustee and the
Depositor to support the Servicer's determination that any Advance was, or if
made would be, a Nonrecoverable Advance. Copies of any and all of the
foregoing items shall be available from the Servicer or the Special Servicer,
as applicable, or the Trustee, upon request. Copies of all such information
shall be delivered by the Servicer or the Special Servicer, as applicable,
quarterly to the Certificate Owners of the Controlling Class (as identified by
the related Depository Participant and for so long as such Class remains
outstanding) at the address specified by such Certificate Owners; provided,
however, that if beneficial ownership of the Controlling Class resides in more
than one Certificate Owner, the Servicer or the Special Servicer, as
applicable, shall be responsible only for the expense of providing the first
such copy of such information and shall be entitled to reimbursement from the
Trust Fund for the expense of any additional copies so provided.
(d) Notwithstanding the obligations of the Servicer set forth in the
preceding provisions of this Section 3.28, the Servicer may withhold any
information not yet included in a Form 8-K filed with the Commission or
otherwise made publicly available with respect to which the Trustee or the
Servicer has determined that such withholding is appropriate.
(e) Notwithstanding any provisions in this Agreement to the
contrary, the Trustee shall not be required to review the content of any
Exchange Act Report for compliance with applicable securities laws or
regulations, completeness, accuracy or otherwise, and the Trustee shall have
no liability with respect to any Exchange Act Report filed with the Commission
or delivered to Certificateholders. None of the Servicer, the Special Servicer
and the Trustee shall be responsible for the accuracy or completeness of any
information supplied by a Borrower or a third party for inclusion in any Form
8-K, and each of the Servicer, the Special Servicer and the Trustee and their
respective Affiliates, agents, directors, officers and employees shall be
indemnified and held harmless by the Trust Fund against any loss, liability or
expense incurred in connection with any legal action relating to any statement
or omission or alleged statement or omission therein. None of the Trustee, the
Special Servicer and the Servicer shall have any responsibility or liability
with respect to any Exchange Act Report filed by the Depositor, and each of
the Servicer, the Special Servicer and the Trustee and their respective
Affiliates, agents, directors, officers and employees shall be indemnified and
held harmless by the Trust Fund against any loss, liability or expense
incurred in connection with any legal action relating to any statement or
omission or alleged statement or omission therein.
SECTION 3.29. Lock-Box Accounts and Servicing Accounts.
(a) The Servicer shall administer each Lock-Box Account, Cash
Collateral Account and Servicing Account in accordance with the related
Mortgage or Loan Agreement, Cash Collateral Account Agreement or Lock-Box
Agreement, if any.
(b) For any Loan that provides that a Lock-Box Account will be
established upon the occurrence of certain events specified in the related
Loan Documents, the Servicer (or, with respect to any Specially Serviced Loan,
the Special Servicer) shall establish on behalf of the Trust such Lock-Box
Account upon the occurrence of such events unless the Servicer (or the Special
Servicer, as applicable) determines, in accordance with the Servicing
Standard, that such Lock-Box Account should not be established.
Notwithstanding the foregoing, the Servicer (or the Special Servicer, as
applicable) shall establish a Lock-Box Account for each ARD Loan no later than
its Anticipated Repayment Date.
(c) With respect to each Loan requiring the establishment of a
Lock-Box Account, the Servicer, upon receipt of the annual financial
statements of each Mortgagor, shall compare the gross revenue for the related
Mortgaged Property, as set forth in such financial statements, with the
history of the related Mortgagor's deposits into such Lock-Box Account and
shall report any discrepancies over 10% to the Special Servicer.
(d) Within 60 days after an escrow account has been
established on behalf of a Mortgagor pursuant to the terms of the related
Mortgage, the Servicer shall notify the financial institution maintaining such
account of the Trustee's security interest in the funds in such account in
those jurisdictions where required in order to perfect or maintain perfection
of the related security interest.
SECTION 3.30. Interest Reserve Account.
(a) The Servicer shall establish, on or before the Closing Date, and
maintain the Interest Reserve Account on behalf of the Lower-Tier REMIC. As of
the Closing Date, the Interest Reserve Account shall be located at the offices
of the Servicer. The Servicer shall give notice to the Trustee, the Special
Servicer and the Depositor of the location of the Interest Reserve Account
and, prior to any change thereof, any new location of the Interest Reserve
Account. On each Servicer Remittance Date ending in any February and on any
Servicer Remittance Date ending in any January which occurs in a year which is
not a leap year, the Servicer shall deposit into the Interest Reserve Account
in respect of each Actual/360 Loan an amount withheld from the related Monthly
Payment or Advance equal to one day's interest on the Stated Principal Balance
of such Actual/360 Loan as of the Distribution Date occurring in the month
preceding the month in which such Servicer Remittance Date occurs at the
related Net Mortgage Rate, to the extent a full Monthly Payment or P&I Advance
is made in respect thereof (all amounts so deposited in any consecutive
January and February (or, in the case of a leap year, in any February),
"Withheld Amounts").
(b) On each Servicer Remittance Date occurring in March, the
Servicer shall withdraw from the Interest Reserve Account an amount equal to
the Withheld Amounts from the preceding December and January Interest Accrual
Periods, if any, and deposit such amount (excluding any net investment income
thereon) into the Lower-Tier Distribution Account.
SECTION 3.31. Limitations on and Authorizations of the Servicer and
Special Servicer with Respect to Certain Loans.
(a) Prior to taking any action with respect to a Loan secured by any
Mortgaged Properties located in a "one-action" state, the Special Servicer
shall consult with legal counsel, the fees and expenses of which shall be an
expense of the Trust Fund.
(b) With respect to any Loan which permits the related Borrower,
with the consent or grant of a waiver by the mortgagee, to incur additional
indebtedness or to amend or modify the related Borrower's organizational
documents, the Special Servicer may consent (subject, without limitation, to
Section 3.20(e) hereof) to either such action, or grant a waiver with respect
thereto, only if the Special Servicer determines that such consent or grant of
waiver is likely to result in a greater recovery on a present value basis
(discounted at the related Mortgage Rate) than the withholding of such consent
or grant of waiver, and the Special Servicer first obtains written
confirmation from each Rating Agency that such consent or grant of waiver
would not, in and of itself, result in a downgrade, qualification or
withdrawal of any of the then current ratings assigned to the Certificates.
The Servicer shall not be entitled or required to consent to, or grant a
waiver with respect to, either action.
(c) With respect to any ARD Loan, so long as no event of default
beyond applicable notice and grace periods has occurred and is continuing, the
Servicer and the Special Servicer shall not take any enforcement action with
respect to the payment of Excess Interest or principal in excess of the
principal component of the constant Monthly Payment, other than requests for
collection, until the date on which principal and all accrued interest (other
than Excess Interest) has been paid in full. With respect to the Town &
Country Loan, so long as no event of default beyond applicable notice and
grace periods has occurred and is continuing (other than an event of default
resulting from a failure to pay the balloon payment and all other sums due and
owing thereunder on the related Maturity Date), the Servicer and the Special
Servicer shall not take any enforcement action with respect to the payment of
T&C Excess Interest or principal in excess of the principal component of the
constant Monthly Payment, other than requests for collection, until the date
on which principal and all accrued interest (other than T&C Excess Interest)
has been paid in full. The failure, if any, of the Mortgagor under the Town &
Country Loan to pay the balloon payment and all other sums due and owing
thereunder on the related Maturity Date shall not, in and of itself,
constitute a Servicing Transfer Event. Nothing in this paragraph shall limit
the obligation of the Servicer and the Special Servicer to establish a
Lock-Box Account pursuant to Section 3.29.
(d) With respect to the Loans that (i) require earthquake insurance,
or (ii) (A) at the date of origination were secured by Mortgaged Properties on
which the related Borrower maintained earthquake insurance and (B) have
provisions which enable the Servicer to continue to require the related
Borrower to maintain earthquake insurance, the Servicer shall require the
related Borrower to maintain such insurance in the amount, in the case of
clause (i), required by the Loan and in the amount, in the case of this clause
(ii), maintained at origination, in each case, to the extent such amounts are
available at commercially reasonable rates. Any determination by the Servicer
that such insurance is not available at commercially reasonable rates with
respect to a Loan for which any related Mortgaged Property has a "Probable
Maximum Loss," bounded on the basis of 50 years, in excess of 20% shall be
subject to confirmation by Fitch that such determination not to purchase such
insurance will not result in a downgrade, qualification or withdrawal of the
then current ratings assigned to the Certificates rated by Fitch.
(e)(i) Within 10 days after the Closing Date, the Servicer shall
notify the Lease Enhancement Insurer and the Residual Value Insurer that both
the Servicer and the Special Servicer shall be sent notices under the Lease
Enhancement Policy and Residual Value Policy, as applicable. If the Servicer
has actual knowledge of any event (an "Insured Event") giving rise to a claim
under any Lease Enhancement Policy or Residual Value Policy, the Servicer
shall notify the Special Servicer thereof within three Business Days after
learning of such event. The Special Servicer shall prepare and file a "proof
of loss" form with the related Lease Enhancement Insurer or Residual Value
Insurer within five Business Days and in any event no later than the
"termination date" as defined in the related policy after receiving notice of
any Insured Event under the related policy and shall diligently process any
claims under such policy in accordance with the Servicing Standard. The
Special Servicer shall give notice to the Servicer of any claim made under any
Lease Enhancement Policy or Residual Value Policy and of any Lease Enhancement
Policy Termination Event or Residual Value Policy Termination Event of which
the Servicer does not already have notice.
(ii) If the Servicer receives notice of any abatement, rescission,
cancellation, termination, contest, legal process, arbitration or
disavowal of liability with respect to any Lease Enhancement Policy or
Residual Value Policy (each, a "Lease Enhancement Policy Termination
Event" or "Residual Value Policy Termination Event," as applicable), the
Servicer shall, within three Business Days after receipt of such notice,
notify the Special Servicer of such Lease Enhancement Policy Termination
Event or Residual Value Policy Termination Event in writing. Upon receipt
of such notice, the Special Servicer shall, notwithstanding that the
servicing of the related Loan may not have been transferred to the
Special Servicer in accordance with Section 3.21 hereof, address such
Lease Enhancement Policy Termination Event or Residual Value Policy
Termination Event in accordance with the Servicing Standard. Any legal
fees incurred in connection with a resolution of a Lease Enhancement
Policy Termination Event or Residual Value Policy Termination Event shall
be paid by the Servicer and shall be reimbursable to it as a Trust Fund
expense.
(f) RESERVED.
(g) Without limiting the Servicer's obligations in accordance with
the Servicing Standard, with respect to each Loan having an initial principal
balance in excess of $20,000,000, at least once before the date that is two
years before the earlier to occur of the Maturity Date or Anticipated
Repayment Date of such Loan, the Servicer shall, in connection with an
inspection of the related Mortgaged Property or otherwise, request to review
the financial statements, the organizational documents and the minute books of
the related Borrower and endeavor to contact the related "independent
director" (if one was required) to determine whether the related Mortgagor has
complied in all material respects with the bankruptcy-remoteness covenants, if
any, made by such Mortgagor in the related Mortgage. The Servicer may seek
legal advice if necessary, in accordance with the Servicing Standard, in
connection with such review and determination. Any reasonable legal fees
incurred in connection with such review and determination shall be paid by the
Servicer and shall be reimbursable to it as a Servicing Advance. If the
Servicer has or obtains actual knowledge that any such bankruptcy-remoteness
covenants have been breached, the Servicer shall promptly notify the Special
Servicer of that fact.
(h) In connection with a proposed substitution of the collateral
securing any Construction Loan, the Special Servicer shall determine the
adequacy of the collateral proposed to be substituted and shall not consent to
such substitution unless it has obtained written confirmation from each Rating
Agency that such substitution would not result in a downgrade, withdrawal or
qualification of any rating on a Class of Certificates rated by such Rating
Agency. Neither the Servicer nor the Special Servicer shall consent to the
waiver or extension of the period within which either (i) a CVS Store must be
completed or (ii) CVS must provide substitute collateral or prepay the related
Construction Loan. The Special Servicer shall enforce the obligations of CVS
with respect to such substitution or prepayment. As a condition to confirming
the adequacy of the collateral proposed to be substituted for a CVS Store upon
the failure to complete construction of such CVS Store by the related Outside
Completion Date, the Special Servicer shall require CVS to deliver, at CVS's
expense, an Opinion of Counsel to the effect that the substitution of such
collateral would not cause any REMIC created hereunder to fail to qualify as a
REMIC. Copies of such Opinion of Counsel shall be delivered to each Rating
Agency (and to the Special Servicer) as a condition to such Rating Agency's
confirming in writing that such substitution would not cause such Rating
Agency to downgrade, qualify or withdraw any of its then-current ratings on
any Class of Certificates.
(i) The Special Servicer shall not consent to a change of franchise
affiliation with respect to any hotel property that in whole or in part
constitutes the Mortgaged Property securing a Loan unless it obtains written
confirmation from each Rating Agency that such change of franchise affiliation
would not, in and of itself, result in a downgrade, qualification or
withdrawal of the then-current ratings on any Class of Certificates.
(j) With respect to each Loan other than Loan Nos. 18, 20, 28 and
85, the Servicer and the Special Servicer shall not take any enforcement
action with respect to the stated obligation of the Borrower to pay or
reimburse payment of any amount representing a "primary servicing fee" or a
"servicing fee."
(k) If Loan No. 31 (the "Town & Country Loan") is in default solely
because it is not repaid in full on or before its Maturity Date, then so long
as no other default beyond any applicable notice and grace period under the
Town & Country Loan has occurred and is continuing, and subject to the other
provisions of this subparagraph, the Servicer (A) shall not accelerate the
related indebtedness but shall charge Default Interest at a rate not to exceed
2% per annum ("T&C Excess Interest"),(B) shall use reasonable efforts,
consistent with the Servicing Standard, to enter into a cash management
agreement, as contemplated by the penultimate paragraph of this Section
3.31(k), to cause the Mortgagor to deposit all rents and other income derived
from such Mortgaged Property (collectively, "T&C Rents") into a Lock-Box
Account (which the Servicer shall establish or cause the related Borrower to
establish if the related Loan Documents do not provide for one) and (C) shall
allocate all sums deposited into such Lock-Box Account for each Collection
Period in the following priority, in each case to the extent of available
funds therefor:
(i) First, to fund the Ground Lease Escrow Fund Subaccount until the
amount on deposit therein is equal to the amount required to be deposited
in the Ground Lease Escrow Fund on the related Payment Date in accordance
with the terms and conditions of the related Mortgage;
(ii) Second, to fund the Tax and Insurance Impound Fund Subaccount
until the amount on deposit therein is equal to the amount required to be
deposited in the Tax and Insurance Impound Fund on the related Payment
Date in accordance with the terms and conditions of the Mortgage;
(iii) Third, to fund the Monthly Debt Service Subaccount until the
amount on deposit therein is equal to the amount of the Monthly Payment
before such Maturity Date (to be applied first to the payment of interest
computed at the Mortgage Rate with the remainder applied to the reduction
of the outstanding principal balance of the related Note);
(vi) Fourth, to fund the Monthly Debt Service Subaccount with any
other amounts due to the lender under the Loan Documents and not
otherwise addressed by this paragraph;
(v) Fifth, to fund the Replacement Escrow Fund Subaccount until the
amount on deposit therein is equal to the amount required to be deposited
in the Replacement Escrow Fund on the related Payment Date in accordance
with the terms and conditions of the Mortgage;
(vi) Sixth, to fund the Leasing Escrow Fund Subaccount until the
amount on deposit therein is equal to the amount required to be deposited
in the Leasing Escrow Fund on the related Payment Date in accordance with
the terms and conditions of the Mortgage;
(vii) Seventh, to fund the Operating Expense Subaccount (which, if
not previously established, will be established by or at the direction of
the Servicer pursuant to a cash management agreement on terms
substantially similar to those contained in cash management agreements
executed in connection with Loans that are ARD Loans) until the amount on
deposit therein is equal to the Cash Expenses, other than management fees
payable to affiliates of Mortgagor, for the month in which such
Collection Period ends, pursuant to the terms and conditions of a budget
for the Mortgaged Property that (x) has been submitted by the Mortgager
to the Servicer, (y) has been approved in writing by the Servicer and (z)
sets forth in reasonable detail budgeted monthly operating income and
monthly operating capital and other expenses for the Mortgaged Property
(the "Approved Annual Budget");
(viii) Eighth, to fund the Operating Expense Subaccount with any Net
Capital Expenditures for the month in which such Collection Period ends
pursuant to the terms and conditions of the related Approved Annual
Budget;
(ix) Ninth, to fund the Operating Expense Subaccount with any
extraordinary operating expenses or capital expenses not set forth in the
Approved Annual Budget or allotted for in the Replacement Escrow Fund (an
"Extraordinary Expense") approved by the Servicer for the month in which
such Collection Period ends, if any;
(x) Tenth, to fund the Monthly Debt Service Subaccount with any
amount equal to the remaining principal balance of the Note, to be
applied against the outstanding principal due under the Note until such
principal amount is paid in full;
(xi) Eleventh, to fund the Monthly Debt Service Subaccount with any
amount equal to any T&C Excess Interest, to be applied against the
outstanding amount thereof until all such Accrued Interest has been
repaid;
(xii) Last, to pay to the Mortgagor any excess amounts.
To the extent T&C Rents are not sufficient to pay the amount due and
owing pursuant to clause (xi) above, the Servicer shall permit payment of such
amount to be deferred (such deferred amount, the "T&C Accrued Interest") until
the earlier to occur of July 11, 2028 and the date upon which all other sums
due and owing on the Town & Country Loan are paid in full. The Servicer shall
not add the T&C Accrued Interest to the outstanding balance due and owing on
the Town & Country Loan, but such amount shall itself accrue interest at a
rate equal to the Mortgage Rate plus 2% per annum if permitted under
applicable law.
If the Mortgagor must incur an Extraordinary Expense, then the Servicer
shall require the Mortgagor to promptly deliver to the Servicer a reasonably
detailed explanation of such proposed Extraordinary Expense for the Servicer's
approval, which the Servicer may grant or deny in its sole discretion.
Nothing in this Section 3.31(k) shall limit, reduce or otherwise affect
the Servicer's obligations to require the Mortgagor under the Town & Country
Loan to make payment of the Monthly Payment Amount or payments due under the
Town & Country Loan to the Tax and Insurance Impound Fund, the Replacement
Escrow Fund, the Ground Lease Escrow Fund and the Leasing Escrow Fund, whether
or not T&C Rents are available to make such payments.
If the Servicer determines that a default has occurred or is reasonably
foreseeable within the meaning of Treas. Reg. ss. 1.860G-2(b)(3)(i) with respect
to the Borrower's obligation to make the balloon payment and all other sums due
and owing on the Town & County Loan on the related Maturity Date, the Servicer
shall give notice to the Borrower thereunder, which notice shall state that
(x) the Borrower, at its own expense, shall enter into a cash management
agreement with the Servicer on behalf of the Trustee, and such other agreements
as the Servicer may require, in order to effectuate the provisions of this
Section 3.31(k) and (y) the failure of such Borrower to comply with clause (x)
of this paragraph shall, notwithstanding this Section 3.31(k), (1) constitute a
Servicing Transfer Event and (2) cause the Servicer to declare the Borrower's
failure to repay the Town & Country Loan in full by its Maturity Date to be an
event of default under such Loan.
All capitalized terms used in this Section 3.31(k) but not otherwise
defined in this Agreement shall have the meanings set forth in the Loan
Documents relating to the Town & Country Loan.
SECTION 3.32. REMIC Administration.
(a) The Trustee shall make an election to treat each of the Lower-Tier
REMIC, Intermediate-Tier REMIC, and the Upper-Tier REMIC as a REMIC under the
Code and if necessary, under State Tax Laws. Each such election will be made
on Form 1066 or other appropriate federal tax or information return (including
Form 8811) or any appropriate state return for the taxable year ending on the
last day of the calendar year in which the Certificates are issued. To the
extent the affairs of the Trust Fund are within their control, the Servicer,
the Special Servicer and the Trustee shall not permit the creation of any
"interests" (within the meaning of Section 860G of the Code) in any REMIC
created hereunder other than the Uncertificated Lower-Tier Interests and
Intermediate-Tier Interests (excluding the Class LR Certificates) and the
Certificates (other than the Class V Certificates). The Construction Loan
Servicing Account created pursuant to Section 3.25 shall not be an asset of
either REMIC and shall be separately accounted for and treated as an "outside
reserve fund" for purposes of Treasury regulation section 1.860G-2(h), and the
funds in the Construction Loan Servicing Account allocable to a given
Construction Loan shall be deemed owned by the related Borrower.
(b) The Closing Date is hereby designated as the "Startup Day" for
each REMIC within the meaning of Section 860G(a)(9) of the Code.
(c) The Holder of the Class LR Certificate is hereby designated, and
by the acceptance of the Class LR Certificate agrees to act, as Tax Matters
Person for the Lower-Tier REMIC and the Intermediate-Tier REMIC. Any Holder of
the Class LR Certificate must at all times hold a 100% Percentage Interest
therein. The Holder of the Class R Certificate is hereby designated, and by
the acceptance of the Class R Certificate agrees to act, as Tax Matters Person
for the Upper-Tier REMIC.
(d) The Tax Matters Person hereby irrevocably authorizes the Trustee
to be its attorney-in-fact for purposes of signing all Tax Returns.
(e) The Trustee shall prepare or cause to be prepared all of the Tax
Returns that it reasonably determines are required with respect to any REMIC
created hereunder and shall sign and file such Tax Returns in a timely manner.
The expenses of preparing such returns shall be borne by the Trustee without
any right of reimbursement therefor.
(f) The Trustee shall provide (i) upon request by any Transferor of
a Class LR or Class R Certificate, such information to such Transferor and the
IRS as is (x) reasonably necessary for the application of any tax relating to
the transfer of a Class LR or Class R Certificate to any Person who is not a
Disqualified Organization or (y) otherwise required to be provided by Treasury
Regulation Section 1.860E-2 (and in the time and manner required to be
provided to such person under such Regulation), (ii) to the Certificateholders
such information or reports as are required by the Code, the REMIC Provisions
or State Tax Laws including reports relating to interest, original issue
discount and market discount or premium (using the Prepayment Assumption) and
(iii) to the Internal Revenue Service the name, title, address and telephone
number of the person who will serve as the representative of each of the
REMICs.
(g) The Trustee shall take such actions and shall cause each REMIC
created hereunder to take such actions as are reasonably within the Trustee's
control and the scope of its duties more specifically set forth herein as
shall be necessary to maintain the status thereof as REMICs under the REMIC
Provisions (and the Servicer and Special Servicer shall assist the Trustee, to
the extent reasonably requested by the Trustee to do so). None of the
Servicer, the Special Servicer or the Trustee shall knowingly or intentionally
take any action, cause any REMIC created hereunder to take any action or fail
to take (or fail to cause to be taken) any action reasonably within its
control and the scope of duties more specifically set forth herein, that,
under the REMIC Provisions, if taken or not taken, as the case may be, could
(i) cause any REMIC created hereunder to fail to qualify as a REMIC or (ii)
result in the imposition of a tax under the REMIC Provisions upon any REMIC
created hereunder (including but not limited to the tax on prohibited
transactions as defined in Section 860F(a)(2) of the Code and the tax on
contributions to a REMIC set forth in Section 860G(d) of the Code) (either
such event, an "Adverse REMIC Event") unless such party receives an Opinion of
Counsel (at the expense of the party seeking to take such action or, if such
party fails to pay such expense, and such party determines that taking such
action is in the best interest of the Trust Fund and the Certificateholders,
at the expense of the Trust Fund, but in no event at the expense of such
party) to the effect that the contemplated action will not, with respect to
any of the REMICs created hereunder, cause any REMIC to fail to qualify as a
REMIC or, unless such party (which is acceptable to the Trustee) determines
that the monetary expense to both REMICs is not material and in its sole
discretion to indemnify (to the extent reasonably acceptable to the Trustee)
the Trust Fund against such tax, result in the imposition of such a tax.
Wherever in this Agreement a contemplated action may not be taken because the
timing of such action might result in the imposition of a tax on the Trust
Fund, or may be taken only pursuant to an Opinion of Counsel that such action
would impose a tax on the Trust Fund, such action may nonetheless be taken so
long as (x) the indemnity given in the preceding sentence with respect to any
taxes that might be imposed on the Trust Fund has been given and (y) all other
preconditions to the taking of such action have been satisfied. The Trustee
shall not take any action (whether or not authorized hereunder) as to which
the Servicer has advised it in writing that it has received an Opinion of
Counsel to the effect that an Adverse REMIC Event could occur with respect to
such action. In addition, prior to taking any action with respect to the Trust
Fund or its assets, or causing the Trust Fund to take any action, which is not
expressly permitted under the terms of this Agreement, each of the parties
hereto will consult with the Trustee or its designee, in writing, with respect
to whether such action could cause an Adverse REMIC Event to occur with
respect to any REMIC created hereunder, and such party shall not take any such
action, or cause REMIC to take any such action, as to which the Trustee has
advised it in writing that an Adverse REMIC Event could occur. The Trustee may
consult with counsel to make such written advice, and the cost of same shall
be borne by the party seeking to take the action not expressly permitted by
this Agreement. At all times as may be required by the Code, the Trustee will
to the extent within its control and the scope of its duties as specifically
set forth herein, maintain substantially all of the assets of the Trust Fund
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.
(h) In the event that any tax is imposed on "prohibited
transactions" of any REMIC created hereunder as defined in Section 860F(a)(2)
of the Code, on "net income from foreclosure property" of any REMIC as defined
in Section 860G(c) of the Code, or any other tax is imposed by the Code or any
applicable provisions of state or local tax laws, such tax shall be charged
(i) to a Servicer, if such tax arises out of or results from a breach by such
Servicer of any of its obligations under this Agreement and such breach is not
caused by the breach of another party, (ii) to the Trustee, if such tax arises
out of or results from a breach by the Trustee of any of its obligations under
this Agreement and such breach is not caused by the breach of another party
and (iii) otherwise, against amounts on deposit in the Certificate Account,
and on the Distribution Date(s) following such reimbursement the aggregate of
such taxes shall be allocated in reduction of the Optimal Interest
Distribution Amount on each Class entitled thereto in the same manner as if
such taxes constituted an Uncovered Prepayment Interest Shortfall Amount.
(i) The Trustee shall, for federal income tax purposes, maintain
books and records with respect to each REMIC on a calendar year and on an
accrual basis or as otherwise may be required by the REMIC Provisions.
(j) Following the Startup Day, neither the Servicer nor the Trustee
shall accept any contributions of assets to any REMIC created hereunder unless
the Servicer and the Trustee shall have received an Opinion of Counsel (at the
expense of the party seeking to make such contribution) to the effect that the
inclusion of such assets in any REMIC created hereunder will not cause such
REMIC to fail to qualify as a REMIC at any time that any Certificates are
outstanding or subject any REMIC created hereunder to any tax under the REMIC
Provisions or other applicable provisions of federal, state and local law or
ordinances.
(k) Neither the Servicer, the Special Servicer nor the Trustee shall
enter into any arrangement by which any REMIC created hereunder will receive a
fee or other compensation for services nor, to the extent reasonably within
their control, permit any such REMIC to receive an income from assets other
than "qualified mortgages" as defined in Section 860G(a)(3) of the Code or
"permitted investments" as defined in Section 860G(a)(5) of the Code.
(l) 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 regular interest in Regular Interests created hereunder would
be reduced to zero is the Rated Final Distribution Date.
(m) Within 30 days after the Closing Date, the Trustee shall prepare
and file with the Internal Revenue Service Form 8811, "Information Return for
Real Estate Mortgage Investment Conduits (REMIC) and Issuers of Collateralized
Debt Obligations" (or applicable successor form) for each REMIC created
hereunder.
(n) None of the Trustee, the Servicer or the Special Servicer shall
sell or dispose of or substitute for any of the Loans (except in connection
with (i) the default, imminent default or foreclosure of a Loan, including but
not limited to, the acquisition or sale of a Mortgaged Property acquired by
deed in lieu of foreclosure, (ii) the bankruptcy of any REMIC created
hereunder, (iii) the termination of any REMIC created hereunder pursuant to
Article X of this Agreement or (iv) a purchase of Loans pursuant to Article II
or Section 3.18 of this Agreement) nor acquire any assets for any REMIC
created hereunder, nor sell or dispose of any investments in the Certificate
Account for gain, nor accept any contributions to any REMIC created hereunder
after the Closing Date, unless it has received an Opinion of Counsel that such
sale or disposition will not affect adversely the status of either REMIC as a
REMIC or cause any REMIC created hereunder to be subject to a tax on
"prohibited transactions" or "contributions" pursuant to the REMIC Provisions.
(o) The Depositor shall provide or cause to be provided to the
Trustee, within ten (10) days after the Closing Date, and thereafter on an
ongoing basis, all information or data requested by the Trustee that the
Trustee reasonably determines to be relevant for tax purposes as to the
valuations and issue prices of the Certificates, including without limitation,
the price, yield, original issue discount, market discount or premium and
projected cash flow of the Certificates. In addition, the Servicer, the
Special Servicer and the Depositor shall provide on a timely basis to the
Trustee or its designee such information with respect to the Trust Fund as is
in its possession and reasonably requested by the Trustee to enable it to
perform its obligations under this Article. The Trustee shall be entitled to
rely conclusively upon all such information so provided to it without
recalculation or other investigation.
(p) The Trustee shall be entitled to reasonable compensation and to
the reimbursement of its reasonable expenses incurred in the performance of
its duties under this Section 3.32 as may be agreed upon by the Trustee and
the Depositor; provided, however, that the Trustee shall pay out of its own
funds, without any right of reimbursement, any and all ordinary expenses of
the Trust Fund incurred in the performance of its duties under this Article
but shall be reimbursed, except as otherwise expressly provided for herein, by
the Trust Fund for any of its extraordinary expenses, including any taxes or
tax-related payments, any expenses involved in any tax examination, audit or
proceeding, and the expense of any tax-related Opinion of Counsel or other
professional advice requested by the Trustee for the benefit or protection of
the Certificateholders.
(q) The Trustee shall treat the rights of the Certificateholders to
receive Yield Protection Payments as assets that the Trustee holds separate
and apart from the Certificateholders' respective portions of the Certificates
treated as REMIC regular interests, and shall treat the Certificateholders as
owning their respective portions of the Certificates treated as REMIC regular
interests and their respective portions of the rights to receive Yield
Protection Payments represented by the respective Certificates.
Notwithstanding any other provision of this Agreement, the rights of the
Certificateholders to receive Yield Protection Payments will not be treated as
assets of any REMIC created pursuant to this Agreement.
[End of Article III]
<PAGE>
ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS
SECTION 4.01. Distributions.
(a) On each Distribution Date prior to the date on which the
Certificate Balance of the last outstanding Class of Subordinate Certificates
has been reduced to zero, to the extent of the Available Distribution Amount
for such Distribution Date, the Trustee shall transfer such amounts from the
Lower-Tier Distribution Account to the Intermediate-Tier Distribution Account
and from the Intermediate-Tier Distribution Account to the Upper-Tier
Distribution Account in the amounts and priorities set forth in Section
4.01(b) with respect to each Class of Uncertificated Intermediate-Tier
Interests, and immediately thereafter, shall make distributions thereof from
the Upper-Tier Distribution Account in the following order of priority,
satisfying in full, to the extent required and possible, each priority before
making any distribution with respect to any succeeding priority from the
Available Distribution Amount:
(i) concurrently, (A) from the Group 1 Available Distribution
Amount, to the Class A-1 Certificates, the Optimal Interest Distribution
Amounts for each such Class for such Distribution Date, (B) from the
Group 2 Available Distribution Amount, to the Class A-2 Certificates, the
Optimal Interest Distribution Amount for such Class for such Distribution
Date and (C) from the Available Distribution Amount, the amount payable
to the Class A-X Certificates with respect to each Component thereof;
provided, however, that if either the Group 1 Available Distribution
Amount or the Group 2 Available Distribution Amount is insufficient to
pay in full the Optimal Interest Distribution Amounts to be distributed
to any such related Classes as described above, the Available
Distribution Amount shall be allocated among all such Classes pro rata in
proportion to such Optimal Interest Distribution Amounts, without regard
to Loan Group;
(ii) to the Class A-2 Certificates, in reduction of the Certificate
Principal Balance thereof, until the Certificate Principal Balance
thereof has been reduced to zero, an amount up to the A-2 Principal
Distribution Amount for such Distribution Date;
(iii) to the Class A-1, and Class A-2 Certificates, in reduction of
the Certificate Balances thereof an amount up to the Principal
Distribution Amount for such Distribution Date remaining after the
distribution set forth in clause (ii), in the following order of
priority:
first, to the Class A-1 Certificates, until the Certificate Balance
thereof has been reduced to zero; and
second, to the Class A-2 Certificates, until the Certificate Balance
thereof has been reduced to zero;
(iv) to the Class A-1, and Class A-2 Certificates, pro rata (based
on the aggregate unreimbursed Collateral Support Deficit previously
allocated to each such Class), until all amounts of such Collateral
Support Deficit previously allocated to such Classes, but not previously
reimbursed, have been reimbursed in full;
(v) to the Class B Certificates, in respect of interest, the
Optimal Interest Distribution Amount for such Class for such Distribution
Date;
(vi) to the Class B Certificates, in reduction of the Certificate
Balance thereof, an amount up to the Remaining Principal Distributable
Amount for such Distribution Date until such Certificate Balance has been
reduced to zero;
(vii) to the Class B Certificates, until all amounts of Collateral
Support Deficit previously allocated to the Class B Certificates, but not
previously reimbursed, have been reimbursed in full;
(viii) to the Class C Certificates, in respect of interest, the
Optimal Interest Distribution Amount for such Class for such Distribution
Date;
(ix) to the Class C Certificates, in reduction of the Certificate
Balance thereof, an amount up to the Remaining Principal Distributable
Amount for such Distribution Date until such Certificate Balance has been
reduced to zero;
(x) to the Class C Certificates, until all amounts of Collateral
Support Deficit previously allocated to the Class C Certificates, but not
previously reimbursed, have been reimbursed in full;
(xi) to the Class D Certificates, in respect of interest, the Optimal
Interest Distribution Amount for such Class for such Distribution Date;
(xii) to the Class D Certificates, in reduction of the Certificate
Balance thereof, an amount up to the Remaining Principal Distributable
Amount for such Distribution Date until such Certificate Balance has been
reduced to zero;
(xiii) to the Class D Certificates, until all amounts of Collateral
Support Deficit previously allocated to the Class D Certificates, but not
previously reimbursed, have been reimbursed in full;
(xiv) the Class E Certificates, in respect of interest, the Optimal
Interest Distribution Amount for such Class for such Distribution Date;
(xv) to the Class E Certificates, in reduction of the Certificate
Balance thereof, an amount up to the Remaining Principal Distributable
Amount for such Distribution Date until such Certificate Balance has been
reduced to zero;
(xvi) to the Class E Certificates, until all amounts of Collateral
Support Deficit previously allocated to the Class E Certificates, but not
previously reimbursed, have been reimbursed in full;
(xvii) to the Class F Certificates, in respect of interest, the
Optimal Interest Distribution Amount for such Class for such Distribution
Date;
(xviii) to the Class F Certificates, in reduction of the Certificate
Balance thereof, an amount up to the Remaining Principal Distributable
Amount for such Distribution Date until such Certificate Balance has been
reduced to zero;
(xix) to the Class F Certificates, until all amounts of Collateral
Support Deficit previously allocated to the Class F Certificates, but not
previously reimbursed, have been reimbursed in full;
(xx) to the Class G Certificates, in respect of interest, the
Optimal Interest Distribution Amount for such Class for such Distribution
Date;
(xxi) to the Class G Certificates, in reduction of the Certificate
Balance thereof, an amount up to the Remaining Principal Distributable
Amount for such Distribution Date until such Certificate Balance has been
reduced to zero;
(xxii) to the Class G Certificates, until all amounts of
Collateral Support Deficit previously allocated to the Class G
Certificates, but not previously reimbursed, have been reimbursed in
full;
(xxiii) to the Class H Certificates, in respect of interest, the
Optimal Interest Distribution Amount for such Class for such Distribution
Date;
(xxiv) to the Class H Certificates, in reduction of the Certificate
Balance thereof, an amount up to the Remaining Principal Distributable
Amount for such Distribution Date until such Certificate Balance has been
reduced to zero;
(xxv) to the Class H Certificates, until all amounts of Collateral
Support Deficit previously allocated to the Class H Certificates, but not
previously reimbursed, have been reimbursed in full;
(xxvi) to the Class I Certificates, in respect of interest, the
Optimal Interest Distribution Amount for such Class for such Distribution
Date;
(xxvii) to the Class I Certificates, in reduction of the
Certificate Balance thereof, an amount up to the Remaining Principal
Distributable Amount for such Distribution Date until such Certificate
Balance has been reduced to zero;
(xxviii) to the Class I Certificates, until all amounts of
Collateral Support Deficit previously allocated to the Class I
Certificates, but not previously reimbursed, have been reimbursed in
full;
(xxix) to the Class J Certificates, in respect of interest, the
Optimal Interest Distribution Amount for such Class for such Distribution
Date;
(xxx) to the Class J Certificates, in reduction of the Certificate
Balance thereof, an amount up to the Remaining Principal Distributable
Amount for such Distribution Date until such Certificate Balance has been
reduced to zero;
(xxxi) to the Class J Certificates, until all amounts of Collateral
Support Deficit previously allocated to the Class J Certificates, but not
previously reimbursed, have been reimbursed in full; and
(xxxii) to the Class R Certificates, the amount, if any, of the
Available Distribution Amount remaining in the Upper-Tier Distribution
Account with respect to such Distribution Date.
(b) On each Distribution Date, each Uncertificated Lower-Tier Interest
shall receive distributions from the Lower-Tier Distribution Account in
respect of principal and interest equal to the amount of principal received in
respect of the Related Mortgage Loan. Any amounts remaining in the Lower-Tier
REMIC after payment to the Uncertificated Lower-Tier Interest and payment of
expenses of the Trust Fund shall be distributed to the Class LR Certificate.
Such amounts distributed to the Uncertificated Lower-Tier Interests in respect
of principal and interest with respect to any Distribution Date are referred
to herein collectively as the "Lower-Tier Distribution Amount". On each
Distribution Date, each Uncertificated Intermediate-Tier Interest shall
receive distributions from the Intermediate-Tier Distribution Account in
respect of principal or reimbursement of Collateral Support Deficit in an
amount equal to the amount of principal or reimbursement of Collateral Support
Deficit distributable to such Uncertificated Intermediate-Tier Interest's
respective Class of Related Certificates as provided in Sections 4.01(a) and
(c). During each Interest Accrual Period, each Uncertificated
Intermediate-Tier Interest shall accrue interest in an amount equal to the
principal balance of each such Uncertificated Intermediate-Tier Interest
multiplied by the Weighted Average Net Mortgage Rate.
On each Distribution Date, each Uncertificated Intermediate-Tier Interest
shall receive distributions in respect of interest in an amount equal to the
sum of (i) the amount of interest that will actually be distributed in respect
of such Uncertificated Intermediate-Tier Interest's Related Certificate and
(ii) the amount of interest that will actually be distributed in respect of
such Uncertificated Intermediate-Tier Interest's corresponding Related
Component. In all events, the amount accrued in respect of each Uncertificated
Intermediate-Tier Interest less the amount actually distributed in respect of
such Uncertificated Intermediate-Tier Interest shall equal the sum of (i) the
Interest Shortfall Amount allocated to such Uncertificated Intermediate-Tier
Interest's Related Certificates, (ii) the Interest Shortfall Amount allocated
to the Related Component and attributable to such Uncertificated
Intermediate-Tier Interest and (iii) any Certificate Deferred Interest
allocated to such Uncertificated Intermediate-Tier Interest. Any amounts
remaining in the Intermediate-Tier REMIC after payment to the Uncertificated
Intermediate-Tier Interest and payment of expenses of the Trust Fund shall be
distributed to the Class LR Certificate. Such amounts distributed to the
Uncertificated Intermediate-Tier Interests in respect of principal, interest
and reduction of Collateral Support Deficit with respect to any Distribution
Date are referred to herein collectively as the "Intermediate-Tier
Distribution Amount and shall be made by the Trustee by depositing such
Intermediate-Tier Distribution Amount in the Upper-Tier Distribution Account.
As of any date, payments of principal in respect of the Loans and the
Collateral Support Deficit shall be allocated to the Uncertificated
Intermediate-Tier Interests such that the sum of the principal balance after
application of any Collateral Support Deficit of each Uncertificated
Intermediate-Tier Interest and the cumulative amount of Collateral Support
Deficit allocated to such Class of Uncertificated Intermediate-Tier Interests
equals the sum of the Certificate Balance of the Related Certificates after
the application of any Collateral Support Deficit with respect thereto and the
cumulative amount of Collateral Support Deficit allocated to such Class of
Related Certificates. The initial principal balance of each Uncertificated
Intermediate-Tier Interest equals the respective Original Intermediate-Tier
Principal Amount. The interest rate with respect to each Uncertificated
Intermediate-Tier Interest will be the rate per annum set forth in the
Preliminary Statement hereto.
Interest Shortfall Amounts allocated to the Class A-X Certificates shall
be attributed first, to the most senior Uncertificated Intermediate-Tier
Interest outstanding to the extent of its Related Component and, then, to the
next most senior Uncertificated Intermediate-Tier Interest to the extent of
its Related Component, until all such amounts are allocated. Any amounts so
allocated shall have the same seniority as interest payments due on the Class
A-X Certificates. Interest shall be treated as accrued rather than paid on an
Uncertificated Intermediate-Tier Interest to the extent that its Related Class
of Certificates is treated as earning Certificate Deferred Interest, and any
such interest shall be added to the principal balance of such Uncertificated
Intermediate-Tier Interest so as to cause its principal balance to equal the
principal balance of its Related Class of Certificates. Any amount that
remains in the Intermediate-Tier Distribution Account on each Distribution
Date after distribution of the Intermediate-Tier Distribution Amount shall be
distributed to the Holders of the Class LR Certificates (but only to the
extent of the Available Distribution Amount for such Distribution Date
remaining in the Intermediate-Tier Distribution Account, if any). Prepayment
Interest Shortfalls shall be allocated to each Class of Uncertificated
Intermediate-Tier Interests on the basis of their respective interest
entitlements.
(c) Notwithstanding the foregoing, on each Distribution Date
occurring on or after the date on which the Certificate Balance of the last
outstanding Class of Subordinate Certificates has been reduced to zero, the
Trustee shall apply amounts on deposit in the Upper-tier Distribution Account
in the following order of priority: (i) concurrently, to the Class A-1, Class
A-2 and Class A-X Certificates, pro rata, in respect of the Optimal Interest
Amount allocable to each such Class; (ii) to the Class A-1, and Class A-2
Certificates, pro rata in reduction of the Certificate Balances thereof, until
the Certificate Balance of each such Class has been reduced to zero; and (iii)
to the Class A-1, and Class A-2 Certificates, pro rata (based on the aggregate
unreimbursed Collateral Support Deficit previously allocated to such Class)
until all amounts of such Collateral Support Deficit previously allocated to
such Classes but not previously reimbursed have been reimbursed in full.
(d) On each Servicer Remittance Date, the Servicer shall deposit all
Prepayment Premiums and Yield Maintenance Charges in the Lower-Tier
Distribution Account for payment to the Uncertificated Lower-Tier Interests.
On each Distribution Date, the Trustee shall withdraw from the Lower-Tier
Distribution Account an aggregate amount equal to all Prepayment Premiums and
Yield Maintenance Charges actually collected on the Group 1 Loans or any REO
Loans relating to the Group 1 Loans during the related Due Period and shall
distribute such amount to the Intermediate-Tier Distribution Account and from
the Intermediate-Tier Distribution Account all Uncertificated
Intermediate-Tier Interests other than the Class MA2 Uncertificated
Intermediate-Tier Interest, pro rata in proportion to their outstanding
principal balances. On each Distribution Date, the Trustee shall withdraw from
the Intermediate-Tier Distribution Account an aggregate amount equal to all
Prepayment Premiums and Yield Maintenance Charges actually collected on the
Group 2 Loans or any REO Loans relating to the Group 2 Loans during the
related Due Period and shall distribute such amount to the Class MA2
Uncertificated Intermediate-Tier Interest.
(e) On each Distribution Date, the Trustee shall withdraw any
amounts on deposit in the Upper-Tier Distribution Account that represent
Prepayment Premiums and Yield Maintenance Charges actually collected on Loans
or REO Loans during the related Due Period and remitted in respect of the
Uncertificated Intermediate-Tier Interests pursuant to Section 4.01(d), and
shall distribute such amounts as follows:
(i) Prepayment Premiums collected on the Group 1 Loans shall be
distributed to the Class A-1, Class B, Class C, Class D and Class E
Certificates, in an amount equal to the product of (a) a fraction whose
numerator is the amount distributed as principal to such Class on such
Distribution Date, and whose denominator is the total amount distributed
as principal to the Class A-1, Class B, Class C, Class D, Class E, Class
F, Class G, Class H, Class I and Class J Certificates on such
Distribution Date (b) 25% and (c) the total amount of Prepayment Premiums
relating to the Group 1 Loans collected during the related Due Period.
Any Prepayment Premiums relating to the Group 1 Loans collected during
the related Due Period and remaining after such distributions shall be
distributed to the Holders of the Class A-X Certificates;
(ii) Prepayment Premiums collected on the Group 2 Loans shall be
distributed to the Holders of the Class A-2 Certificates, in an amount
equal to the product of (a) a fraction not greater than 1, whose
numerator is the amount distributed as principal to such Class on such
Distribution Date, and whose denominator is the amount distributed as
Principal Prepayments on such Distribution Date from the Group 2 Loans,
(b) 25% and (c) the total amount of Prepayment Premiums relating to the
Group 2 Loans collected during the related Due Period. Any Prepayments
Premiums relating to the Group 2 Loans collected during the related Due
Period and remaining after such distributions shall be distributed to the
Holders of the Class A-X Certificates;
(iii) Yield Maintenance Charges collected on the Group 1 Loans shall
be distributed to the Class A-1, Class B, Class C, Class D and Class E
Certificates, in an amount equal to the product of (a) a fraction whose
numerator is the amount distributed as principal to such Class on such
Distribution Date, and whose denominator is the total amount distributed
as principal to the Class A-1, Class B, Class C, Class D, Class E, Class
F, Class G, Class H, Class I and Class J Certificates on such
Distribution Date, (b) the Base Interest Fraction for the related
Principal Prepayment and such Class of Certificates and (c) the aggregate
amount of Yield Maintenance Charges relating to the Group 1 Loans
collected on such Principal Prepayment during the related Due Period. Any
Yield Maintenance Charges relating to the Group 1 Loans collected during
the related Due Period remaining after such distributions shall be
distributed to the Holders of the Class A-X Certificates.
(iv) Yield Maintenance Charges collected on the Group 2 Loans shall
be distributed to the Class A-2 Certificates, in an amount equal to the
product of (a) a fraction, not greater than 1, whose numerator is the
amount distributed as principal to such Class on such Distribution Date
from the Group 2 Loans, and whose denominator is the total amount
distributed as Principal Prepayments on such Distribution Date from the
Group 2 Loans, (b) the Base Interest Fraction for the related Principal
Prepayment and such Class of Certificates, and (c) the aggregate amount
of Yield Maintenance Charges relating to the Group 2 loans collected on
such Principal Prepayment during the related Due Period. Any Yield
Maintenance charges relating to the Group 2 Loans collected during the
related Due period remaining after such distribution will be distributed
to the Holders of the Class A-X Certificates.
Following the reduction of the Certificate Balances of the Class
A-1, Class A-2, Class B, Class C, Class D and Class E Certificates to zero,
the Trustee shall distribute to the Class A-X Certificates all Yield
Maintenance Charges and Prepayment Premiums actually received during the
related Due Period with respect to the Loans and remitted in respect of
Uncertificated Intermediate-Tier Interests pursuant to Section 4.01(d).
(f) On any applicable Distribution Date, any Excess Interest for
such Distribution Date shall be distributed from the Excess Interest
Distribution Account to the Class V Certificates.
(g) All distributions made with respect to each Class on each
Distribution Date shall be allocated pro rata among the outstanding
Certificates in such Class based on their respective Percentage Interests.
Except as otherwise specifically provided in Sections 4.01(h), 4.01(i) and
9.01, all such distributions with respect to each Class on each Distribution
Date shall be made to the Certificateholders of the respective Class of record
at the close of business on the related Record Date and shall be made by wire
transfer of immediately available funds to the account of any such
Certificateholder at a bank or other entity having appropriate facilities
therefor, if such Certificateholder shall have provided the Trustee with
written wiring instructions no less than five Business Days prior to the
related Record Date (which wiring instructions may be in the form of a
standing order applicable to all subsequent Distribution Dates) and is the
registered owner of Certificates with an aggregate initial Certificate Balance
(or in the case of the Class A-X Certificates, a Notional Balance) of at least
$5,000,000, or otherwise by check mailed to the address of such
Certificateholder as it appears in the Certificate Register. The final
distribution on each Certificate (determined without regard to any possible
future reimbursement of Collateral Support Deficit previously allocated to
such Certificate) shall be made in like manner, but only upon presentation and
surrender of such Certificate at the offices of the Certificate Registrar or
such other location specified in the notice to Certificateholders of such
final distribution.
Each distribution with respect to a Book-Entry Certificate shall be paid
to the Depository, as Holder thereof, and the Depository shall be responsible
for crediting the amount of such distribution to the accounts of its
Depository Participants in accordance with its normal procedures. Each
Depository Participant shall be responsible for disbursing such distribution
to the Certificate Owners that it represents and to each indirect
participating brokerage firm (a "brokerage firm" or "indirect participating
firm") for which it acts as agent. Each brokerage firm shall be responsible
for disbursing funds to the Certificate Owners that it represents. None of the
Trustee, the Certificate Registrar, the Depositor, the Servicer, the Special
Servicer, the Underwriter or the Initial Purchaser shall have any
responsibility therefor except as otherwise provided by this Agreement or
applicable law.
(h) Except as otherwise provided in Section 9.01, whenever the
Trustee expects that the final distribution with respect to any Class of
Certificates (determined without regard to any possible future reimbursement
of any amount of Collateral Support Deficit previously allocated to such Class
of Certificates) will be made on the next Distribution Date, the Trustee
shall, no later than two Business Days following the related P&I Advance
Determination Date, mail to each Holder on such date of such Class of
Certificates a notice to the effect that no interest shall accrue on such
Certificates from and after such Distribution Date.
Any funds not distributed to any Holder or Holders of Definitive
Certificates of any Class on such Distribution Date because of the failure of
such Holder or Holders to tender their Certificates shall, on such date, be
set aside and held uninvested in trust and credited to the account or accounts
of the appropriate non-tendering Holder or Holders. If any Definitive
Certificates as to which notice has been given pursuant to this Section
4.01(h) shall not have been surrendered for cancellation within six months
after the time specified in such notice, the Trustee shall mail a second
notice to the remaining non-tendering Definitive Certificateholders to
surrender their Certificates for cancellation in order to receive the final
distribution with respect thereto. If within one year after the second notice
all such Definitive Certificates shall not have been surrendered for
cancellation, the Trustee, directly or through an agent, shall take such steps
to contact the remaining non-tendering Definitive Certificateholders
concerning the surrender of their Certificates as it shall deem appropriate.
The costs and expenses of holding such funds in trust and of contacting such
Definitive Certificateholders following the first anniversary of the delivery
of such second notice to the non-tendering Certificateholders shall be paid
out of such funds. No interest shall accrue or be payable to any Definitive
Certificateholder on any amount held in trust hereunder by the Trustee as a
result of such Definitive Certificateholder's failure to surrender its
Certificate(s) for final payment thereof in accordance with this Section
4.01(h).
(i) Distributions in reimbursement of Collateral Support Deficit
previously allocated to the Regular Certificates shall be made in the amounts
and manner specified in Section 4.01(a) to the Holders of the respective Class
otherwise entitled to distributions of interest and principal on such Class on
the relevant Distribution Date; provided, however, that all distributions in
reimbursement of Collateral Support Deficit previously allocated to a Class of
Certificates which has since been retired shall be to the prior Holders that
surrendered the Certificates of such Class upon retirement thereof and shall
be made by check mailed to the address of each such prior Holder last shown in
the Certificate Register. Notice of any such distribution to a prior Holder
shall be made in accordance with Section 10.05 at such last address. The
amount of the distribution to each such prior Holder shall be based upon the
aggregate Percentage Interest evidenced by the Certificates surrendered
thereby. If the check mailed to any such prior Holder is returned uncashed,
then the amount thereof shall be set aside and held uninvested in trust for
the benefit of such prior Holder, and the Trustee shall attempt to contact
such prior Holder in the manner contemplated by Section 4.01(h) as if such
Holder had failed to surrender its Certificates.
(j) Shortfalls in the Available Distribution Amount on any
Distribution Date resulting from Prepayment Interest Shortfalls not covered by
compensation to the Servicer pursuant to the last paragraph of Section 3.11(a)
shall be allocated to each Class of Regular Certificates, pro rata, based on
the Accrued Certificate Interest Amount distributable to each such Class on
such Distribution Date. The amount by which the servicing compensation is to
be reduced in connection with Prepayment Interest Shortfalls pursuant to the
last paragraph of Section 3.11(a) shall be deposited by the Servicer into the
Certificate Account on or prior to the Servicer Remittance Date.
Shortfalls in the Available Distribution Amount resulting from
unanticipated Trust Fund indemnification expenses incurred pursuant to Section
6.03 and Section 8.05 shall be allocated to each Class of Regular
Certificates, pro rata, based on the Accrued Certificate Interest Amount
distributable to each such Class. Unanticipated indemnification expenses which
are applied to each Class of Certificates shall be allocated to the
Uncertificated Intermediate-Tier Interests corresponding to such Classes.
(k) On each Distribution Date on which the Holders of a Class or
Classes of Regular Certificates receive a distribution of Additional
Collateral Prepayment Amounts (which distribution shall be deemed made after
application of that portion of the Principal Distribution Amount other than
such Additional Collateral Prepayment Amounts), (i) the Regular Yield
Protection Payment Amount for such Distribution Date shall be distributed to
such Class or Classes pro rata in accordance with the portion of such
Additional Collateral Prepayment Amount that is allocated to each such Class
and (ii) the Class A-X Yield Protection Payment Amount for such Distribution
Date shall be distributed to the Holders of the Class A-X Certificates.
SECTION 4.02. Statements to Certificateholders; Reports by Trustee; Other
Information Available to the Holders and Others.
(a) On each Distribution Date, based solely upon the information
regarding the Loans set forth in the Servicer Remittance Report prepared by
the Servicer and the other reports prepared by the Servicer and Special
Servicer relating to such Distribution Date, and only to the extent such
information is provided to the Trustee by the Servicer or Special Servicer,
the Trustee shall prepare and forward to each Holder of a Certificate, with
copies to the Depositor, the Servicer, the Special Servicer, the Underwriter,
each Rating Agency, Bloomberg, L.P., the Trepp Group, Charter Research
Corporation and Intex Solutions, Inc. and, if requested, any potential
investors in the Certificates, a written report (a "Statement to
Certificateholders") setting forth the following information:
the aggregate amount of the distribution to be made on such
Distribution Date to the Holders of each Class of Certificates
applied to reduce the respective Certificate Balance thereof;
the aggregate amount of the distribution to be made on such
Distribution Date to the Holders of each Class of Certificates
allocable to (A) such Class's Optimal Interest Distribution
Amount and, separately stated, the portion thereof representing
the Unpaid Interest Shortfall Amount for such Class, (B)
Prepayment Premiums and (C) Yield Maintenance Charges;
separately stated, the aggregate amounts of Uncovered Prepayment
Interest Shortfall Amounts, Certificate Deferred Interest and
indemnification expenses of the Trust Fund allocable to the
Holders of each Class of Certificates on such Distribution
Date;
the aggregate Certificate Balance or aggregate Notional Balance, as
the case may be, of each Class of Regular Certificates, before
and after giving effect to the distributions made on such
Distribution Date, separately identifying any reduction in the
aggregate Certificate Balance (or, in the case of the Class A-X
Certificates, the aggregate Notional Balance) of each such
Class due to any Collateral Support Deficit;
the Pass-Through Rate for each Class of Certificates applicable to
such Distribution Date;
the number of outstanding Loans and the aggregate unpaid principal
balance of the Loans at the close of business on the related
Distribution Date;
the number and aggregate unpaid principal balance of Loans (A)
delinquent 30 to 59 days, (B) delinquent 60 to 89 days, (C)
delinquent 90 days or more, (D) that are current but Specially
Serviced Loans (identifying, for each such Specially Serviced
Loan, the nature of the related Servicing Transfer Event) or
(E) that were in foreclosure but were not REO Loans;
with respect to any REO Loan as to which the related Mortgaged
Property became an REO Property during the preceding calendar
month, the city, state, property type, latest Debt Service
Coverage Ratio, Stated Principal Balance and the unpaid
principal balance of such Loan as of the date it became an REO
Loan;
as to any Loan repurchased by the CSFB Mortgage Loan Seller, or
otherwise liquidated or disposed of during the related Due
Period, (A) the Loan Number of the related Loan and (B) the
amount of proceeds of any repurchase of a Loan, Liquidation
Proceeds and/or other amounts, if any, received thereon during
the related Due Period and the portion thereof included in the
related Available Distribution Amount for such Distribution
Date;
with respect to any REO Property included in the Trust Fund at the
close of business on the related Due Date (A) the Loan Number
of the related Loan, (B) the value of such REO Property based
on the most recent Appraisal or valuation, and (C) the
aggregate amount of income and other revenues collected by the
Special Servicer with respect to such REO Property during the
related Due Period and the portion thereof included in the
related Available Distribution Amount for such Distribution
Date;
with respect to any REO Property sold or otherwise disposed of
during the related Due Period and for which a Final Recovery
Determination has been made, (A) the Loan Number of the related
Loan, (B) the amount of sale proceeds and other amounts, if
any, received in respect of such REO Property during the
related Due Period and the portion thereof included in the
related Available Distribution Amount for such Distribution
Date and (C) the date of the Final Recovery Determination;
the amount of Principal Prepayments (in the aggregate and on a
loan-by-loan basis) made during the related Due Period, the
amount of any Yield Maintenance Charges, Prepayment Premiums
and/or Yield Protection Payments (in the aggregate and on a
loan-by-loan basis) paid during the related Due Period and the
aggregate amount of any Prepayment Interest Shortfalls not
covered by the Servicer for such Distribution Date;
the amount of Servicing Advances and P&I Advances outstanding (net
of reimbursed Advances) which have been made by the Servicer,
the Special Servicer or the Trustee in the aggregate and by
Mortgaged Property or Loan, as the case may be;
the aggregate amount of Servicing Fees, Special Servicing Fees and
other servicing compensation retained by or paid to the
Servicer and the Special Servicer during the related Due
Period;
the amount of any Appraisal Reduction Amounts allocated during the
related Due Period on a loan-by-loan basis; the total Appraisal
Reduction Amounts allocated during the related Due Period; and
the total Appraisal Reduction Amounts as of such Distribution
Date on a loan-by-loan basis;
the Collateral Support Deficit, if any for such Distribution Date;
the Pass-Through Rate for each Class of Certificates applicable for
such Distribution Date;
and Trust Fund expenses incurred
during the related Due Period.
In the case of information furnished pursuant to subclauses (i), (ii) and
(iv) above, the amounts shall be expressed as a dollar amount in the aggregate
for all Certificates of each applicable Class and per $1,000 of original
Certificate Balance or Notional Balance, as the case may be.
On each Distribution Date, the Trustee shall forward to each Holder of a
Class R or Class LR Certificate a copy of the reports forwarded to the other
Certificateholders on such Distribution Date and a statement setting forth the
amounts, if any, actually distributed with respect to the Class R or Class LR
Certificates on such Distribution Date. Such obligation of the Trustee shall
be deemed to have been satisfied to the extent that it provided substantially
comparable information pursuant to any requirements of the Code as from time
to time in force.
Within a reasonable period of time after the end of each calendar year,
the Trustee shall send to each Person who at any time during the calendar year
was a Certificateholder of record, a report summarizing on an annual basis (if
appropriate) the items provided to Certificateholders pursuant to Section
4.02(a)(ii) above and such other information as may be required to enable such
Certificateholders to prepare their federal income tax returns. Such
information shall include the amount of original issue discount accrued on
each Class of Certificates held by Persons other than Holders exempted from
the reporting requirements and information regarding the expenses of the
Trust. Such requirement shall be deemed to be satisfied to the extent such
information is provided pursuant to applicable requirements of the Code from
time to time in force.
(b) On each Distribution Date, the Trustee shall deliver or cause to
be delivered to each Certificateholder, each prospective investor in a
Certificate (upon written request and certification by a Certificate Owner),
the Depositor, the Servicer, the Special Servicer, the Underwriter and each
Rating Agency a report (as of the end of the related Due Period (after giving
effect to Principal Prepayments and other collections of principal required to
be distributed on such Distribution Date)) containing substantially the
categories of information regarding the Loans set forth in the Prospectus
Supplement under the caption "Certain Characteristics of the Mortgage
Loans--Certain Terms and Conditions of the Mortgage Loans" (reported, where
applicable, solely on the basis of the most recent relevant information
provided by the Borrowers to the Servicer or the Special Servicer, as the case
may be, and by the Servicer or the Special Servicer, as the case may be, to
the Trustee). The report described in the preceding sentence shall also
include a loan-by-loan listing showing loan name, property type, location,
unpaid principal balance, Mortgage Rate, paid-through date, maturity date, net
interest portion of the Monthly Payment, principal portion of the Monthly
Payment and any Prepayment Premium. Such reports shall be made available
electronically in accordance with the provisions of Section 4.02(d); provided,
however, that the Trustee shall provide Certificate Owners with a written copy
of such report upon written request. If any event or occurrence required
action on the part of the Special Servicer pursuant to Section 3.25 during the
related Due Period, the Servicer shall include the related Construction Loan
on the Servicer's Watch List and shall make copies of the related Construction
Loan Status Report available to the Rating Agencies and Certificateholders as
provided herein.
(c) On each Distribution Date, the Trustee shall deliver or shall
cause to be delivered to each Certificateholder, each prospective investor in
a Certificate (upon written request and certification by a Certificate Owner),
the Depositor, the Underwriter, the Special Servicer and each Rating Agency a
copy of the Comparative Financial Status Report, the Delinquent Loan Status
Report, the Historical Loss Estimate Report, the Historical Loan Modification
Report, the REO Status Report and a Servicer Watch List provided by the
Servicer to the Trustee pursuant to Section 3.12 on the Servicer Remittance
Date (which reports shall provide the required information as of the related
Determination Date). The information that pertains to Specially Serviced Loans
and REO Properties reflected in such reports shall be based solely upon the
reports delivered by the Special Servicer to the Servicer one Business Day
after the related Determination Date. Absent manifest error, (i) none of the
Servicer, the Special Servicer or the Trustee shall be responsible for the
accuracy or completeness of any information supplied to it by a Borrower or
third party that is included in any reports, statements, materials or
information prepared or provided by the Servicer, the Special Servicer or the
Trustee, as applicable, (ii) the Trustee shall not be responsible for the
accuracy or completeness of any information supplied to it by the Servicer or
Special Servicer that is included in any reports, statements, materials or
information prepared or provided by the Servicer or Special Servicer, as
applicable, and (iii) the Trustee shall be entitled to conclusively rely upon
the Servicer's reports and the Special Servicer's reports without any duty or
obligation to recompute, verify or re-evaluate any of the amounts or other
information stated therein.
The Trustee shall deliver a copy of each Operating Statement Analysis
report that it receives from the Servicer and Special Servicer to the
Depositor, the Underwriter, the Special Servicer and each Rating Agency
promptly after its receipt thereof. Upon written request therefor, the Trustee
shall make such reports available to the Certificateholders.
(d) The Trustee shall make available at its offices, during normal
business hours, upon not less than ten Business Days' prior written notice,
for review by any Certificateholder, any prospective investor in a
Certificate, the Depositor, the Servicer, the Special Servicer, any Rating
Agency, and any other Person to whom the Depositor believes such disclosure is
appropriate, originals or copies of documents relating to the Loans and any
related REO Properties to the extent in its possession, including, without
limitation, the following items (except to the extent prohibited by applicable
law or by the terms of any of the Mortgage Documents): (i) this Agreement and
any amendments thereto; (ii) all Statements to Certificateholders delivered to
the Certificateholders since the Closing Date; (iii) all annual Officers'
Certificates and all accountants' reports delivered by the Servicer or Special
Servicer to the Trustee since the Closing Date regarding compliance with the
relevant agreements; (iv) the most recent property inspection report prepared
by or on behalf of the Servicer or the Special Servicer in respect of each
Mortgaged Property; (v) the most recent annual (or more frequent, if
available) operating statements, rent rolls (to the extent such rent rolls
have been made available by the related Borrower) and/or lease summaries and
retail sales information, if any, collected by or on behalf of the Servicer or
the Special Servicer in respect to each Mortgaged Property; (vi) any and all
modifications, waivers and amendments of the terms of a Loan entered into by
the Servicer and/or the Special Servicer; (vii) any and all Officers'
Certificates and other evidence delivered to or by the Trustee to support the
Servicer's or the Trustee's, as the case may be, determination that any
Advance, if made, would be a Nonrecoverable Advance; and (viii) any other
materials not otherwise required to be provided to a requesting
Certificateholder pursuant to this Agreement, in situations where such
requesting Certificateholder declined to enter into a confidentiality
agreement with the Servicer. The Servicer shall cooperate with the Trustee to
make any of the above-mentioned items available to any Certificateholder upon
its request and payment by it of reasonable costs. Copies of any and all of
the foregoing items will be available from the Trustee upon written request
therefor. The Trustee will be permitted to require payment by the requesting
party (other than a Rating Agency) of a sum sufficient to cover the reasonable
costs and expenses of making such information available and providing any
copies thereof. The Trustee's obligation under this Section 4.02(d) to make
available any document is subject to the Trustee's receipt of such document.
The Trustee shall make available the monthly Statements to
Certificateholders on The Chase Manhattan Bank's home page on the World Wide
Web at www.globaltrustservices.com or such other site designated by the
Trustee. In addition, if the Depositor so directs the Trustee, the Trustee
will make certain information related to the Loans available through the
website described above and through its electronic bulletin board (available
by calling 713-216-2933); provided that the Trustee shall be entitled to
presume the accuracy of any information it is directed to make available and
shall have no liability for errors in the information provided to it.
The Servicer shall make the Comparative Financial Status Reports,
Delinquent Loan Status Reports, Historical Loan Modification Reports, Historical
Loss Estimate Reports, REO Status Reports, Servicer Watch Lists and Operating
Statement Analyses available via its Internet Website no later than three
Business Days following each Distribution Date. The Trustee and the Servicer
shall each provide a link on their respective Internet Websites to the other's
Website. The Servicer shall not exhibit non-approved information relating to the
Trust Fund or forms on its Internet Website without the prior written consent of
the Depositor.
The Trustee shall be obligated to deliver the statements, reports and
information contemplated by Section 4.02 only to the extent it receives the
necessary underlying information from the Servicer or the Special Servicer and
shall not be liable for any failure to deliver any thereof on the prescribed
due dates, to the extent caused by failure to receive timely such underlying
information. Nothing herein shall obligate the Trustee, the Servicer or the
Special Servicer to violate any applicable law prohibiting disclosure of
information with respect to any Borrower and the failure of the Trustee, the
Servicer or the Special Servicer to disseminate information for such reason
shall not be a breach hereof.
As the Depositor and the Trustee may agree, the Trustee may make
available, as a convenience for interested parties (and not in furtherance of
the distribution of the Prospectus or the Prospectus Supplement under the
securities laws), the Pooling and Servicing Agreement, the Prospectus and the
Prospectus Supplement via the Trustee's Internet Website and electronic
bulletin board. The Trustee makes no representations or warranties as to the
accuracy or completeness of any such documents and, subject to Article VIII
hereof, will assume no responsibility therefor.
In connection with providing access to the Trustee's and/or the
Servicer's Internet Website or electronic bulletin board, the Trustee or the
Servicer, as the case may be, may require registration and the acceptance of a
disclaimer. Neither the Servicer nor the Trustee shall be liable for the
dissemination of information in accordance with this Agreement.
(e) Notwithstanding the foregoing provisions of this Article 4.02,
the Trustee shall not be required to provide the full reporting provided for
in Sections 4.02(b) and (c) unless and until the Servicer provides its related
reporting to the Trustee in CSSA format.
SECTION 4.03 P&I Advances; Yield Protection Payment Advances.
(a) On or before 3:00 p.m. New York City time on each P&I Advance
Date, the Servicer shall (i) deposit into the Distribution Accounts from its
own funds an amount equal to the aggregate amount of P&I Advances, if any, to
be made in respect of the related Distribution Date, (ii) apply amounts held
in the Certificate Account that are not required to be part of the Available
Distribution Amount for such Distribution Date or (iii) make P&I Advances in
the form of any combination of (i) and (ii) aggregating the total amount of
P&I Advances to be made. Any amounts held in the Certificate Account not
required to be a part of the Available Distribution Amount for such
Distribution Date and so used to make P&I Advances shall be appropriately
reflected in the Servicer's records and replaced by the Servicer by deposit in
the Certificate Account on or before the next succeeding P&I Advance
Determination Date (to the extent not previously replaced through the deposit
of Late Collections of the delinquent principal and/or interest in respect of
which such P&I Advances were made). The Servicer shall notify the Trustee by a
certificate of the Servicing Officer of (i) the aggregate amount of P&I
Advances for a Distribution Date and (ii) the amount of any Nonrecoverable P&I
Advances for such Distribution Date, on or before the Servicer Remittance
Date.
(b) Subject to Section 4.03(c) and (e) below, the aggregate amount
of P&I Advances to be made by the Servicer with respect to any Distribution
Date shall equal the aggregate of: (i) all Monthly Payments (in each case, (x)
net of related Primary Servicing Fees and Servicing Fees (y) plus the amount,
if any, by which the related Mortgagor is required to reimburse such fees),
other than Balloon Payments, that were due during any related Due Period and
delinquent as of the close of business on the Business Day preceding the
related P&I Advance Date (or not advanced by any Sub-Servicer on behalf of the
Servicer); (ii) with respect to each Loan as to which the related Balloon
Payment was due during or prior to the related Due Period and was delinquent
as of the end of the related Due Period (including any REO Loan as to which
the Balloon Payment would have been past due), an amount equal to the Assumed
Scheduled Payment therefor, and (iii) if there is no Due Date for the United
Artists Loan in the month in which such Distribution Date falls, the United
Artists Loan Interest Advance Amount for such Distribution Date. Subject to
subsection (c) below, the obligation of the Servicer to make such P&I Advances
is mandatory and, with respect to any Loan or REO Loan, shall continue until
the Distribution Date on which the proceeds, if any, received in connection
with a Liquidation Event with respect thereto are to be distributed.
(c) Notwithstanding anything herein to the contrary, no P&I Advance
shall be required to be made hereunder if such P&I Advance would, if made,
constitute a Nonrecoverable P&I Advance. On the fourth Business Day before
each Distribution Date, the Special Servicer shall report to the Servicer the
Special Servicer's determination as to whether each P&I Advance made with
respect to any previous Distribution Date or required to be made with respect
to such Distribution Date with respect to any Specially Serviced Loan or REO
Loan is a Nonrecoverable P&I Advance. The Servicer shall be entitled to
conclusively rely on such determination.
(d) In connection with the recovery of any P&I Advance out of the
Certificate Account pursuant to Section 3.05(a), the Servicer shall be
entitled to pay itself or the Trustee, as the case may be, out of any amounts
then on deposit in the Certificate Account, interest at the Reimbursement Rate
in effect from time to time, accrued on the amount of such P&I Advance from
the date made to but not including the date of reimbursement; provided,
however, that under no circumstances shall the Servicer be entitled to recover
interest on any portion of a P&I Advance represented by a United Artists Loan
Interest Advance Amount so long as no payment default exists under the United
Artists Loan, and if any such payment default does exist, the Servicer shall
be entitled to recover interest on any such P&I Advance only from and after
the Due Date as to which such default occurred. The Servicer shall reimburse
itself or the Trustee, as the case may be, for any outstanding P&I Advance as
soon as practicably possible after funds available for such purpose are
deposited in the Certificate Account.
(e) Notwithstanding the foregoing, (i) neither the Servicer nor the
Trustee shall be required or permitted to make an advance for Penalty Charges,
Prepayment Premiums, Yield Maintenance Charges, Balloon Payments or Excess
Interest, (ii) the amount required to be advanced in respect of delinquent
Monthly Payments and Assumed Scheduled Payments on any Loan that has been
subject to an Appraisal Reduction will equal, with respect to any Distribution
Date, the amount that would be required to be advanced by the Servicer without
giving effect to the Appraisal Reduction less the Appraisal Reduction Amount
for such Distribution Date, and (iii) if the monthly payment on any Loan (or,
in the case of the United Artists Loan, the semi-annual payment) has been
reduced or the final maturity extended, in connection with a bankruptcy or
similar proceeding involving the related Mortgagor or a modification, waiver
or amendment granted or agreed to by the Special Servicer pursuant to Section
3.20, and the monthly payment due and owing during the extension period is
less than the related Assumed Scheduled Payment, then the Servicer shall, as
to such Loan only, advance only the amount of the Monthly Payment due and
owing after taking into account such reduction (net of related Primary
Servicing Fees and Servicing Fees), in the event of subsequent delinquencies
thereon.
(f) Upon receipt of notice of a Lease Enhancement Policy Termination
Event or Residual Value Policy Termination Event, the Servicer shall:
(i) Maintain a record of all payments by the related Lease
Enhancement Insurer (the aggregate amount already paid at such
time, together with all subsequent payments made from time to
time thereafter, under the Lease Enhancement Policy, the
"Lease Enhancement Policy Exposure");
(ii) Make no P&I Advance with respect to the related Loan to the
extent that such P&I Advance, taking into account any Lease
Enhancement Policy Exposure, would constitute a Nonrecoverable
P&I Advance;
(iii) Upon determination that, with respect to such Loan, any P&I
Advance (or portion thereof) relating to a payment (or portion
thereof) by the Lease Enhancement Policy Insurer, taking into
account the Lease Enhancement Policy Exposure, constituted a
Nonrecoverable Advance, deposit into an account (the "Policy
Escrow Account") established and maintained by the Servicer as
an Eligible Account all payments made under the related Lease
Enhancement Policy after the date of such determination until
the date on which ultimate responsibility (as between the
Trust Fund and the Lease Enhancement Policy Insurer) for
payments with respect to such Lease Enhancement Policy
Termination Event is finally resolved. Amounts deposited in
the Policy Escrow Account shall be invested in Permitted
Investments selected by the Servicer pursuant to Section 3.06;
(iv) If any payment (or portion thereof) made by any Lease
Enhancement Policy Insurer or Residual Value Insurer is
subsequently determined, in accordance with the dispute
resolution procedures set forth in the related Lease
Enhancement Policy or pursuant to any legal process or
settlement by the Special Servicer of any claim by such Lease
Enhancement Policy Insurer or Residual Value Insurer, to be
reimbursable to such issuer, (a) remit to such issuer the
amount on deposit in the Policy Escrow Account (up to the
amount owed to the issuer), (b) make a P&I Advance of any
remaining amount owed to the issuer and (c) promptly pay the
amount of such P&I Advance to such issuer under the Lease
Enhancement Policy or Residual Value Policy with respect to
such Lease Enhancement Policy Termination Event or Residual
Value Policy Termination Event. If such P&I Advance is
determined to be a Nonrecoverable P&I Advance, the Servicer
shall nevertheless make such P&I Advance to the related Lease
Enhancement Policy Insurer or Residual Value Insurer to
reimburse it for amounts paid out under the Lease Enhancement
Policy or Residual Value Policy as provided above, but the
Servicer shall be entitled to immediately reimburse itself
from general funds available in the Certificate Account for
such P&I Advance as a Trust Fund expense. If such P&I Advance
is not determined to be a Nonrecoverable P&I Advance, the
Servicer shall be repaid therefor out of the proceeds of the
related Loan.
(v) If any payment (or portion thereof) made by such Lease
Enhancement Policy Insurer and deposited into the Policy
Escrow Account is subsequently determined to have been
properly payable to the Trust Fund, then the Servicer shall
deposit into the Certificate Account the amount on deposit in
the Policy Escrow Account (net of any interest and investment
income realized on funds on deposit therein that, pursuant to
Section 3.06(a), is to be applied to pay interest on Advances
made with respect to, or other expenses of the Trust Fund
allocable to, the related Loan), together with any payments in
the nature of damages relating to non-payment under such Lease
Enhancement Policy, as recoveries with respect to such Loan.
(g) With respect to each Due Period, if any, in which (x) Additional
Collateral Prepayment Amounts are paid pursuant to the terms of one or more
Additional Collateral Loans or (y) a Donatelli Loan Special Prepayment is paid
in connection with Loan No. 14, the Servicer shall make an advance to the
Yield Protection Payment Account on the related Servicer Remittance Date in an
amount equal to the aggregate Yield Protection Payments, if any, for the
related Distribution Date (such advance, a "Yield Protection Payment
Advance"). The Servicer's obligation to make Yield Protection Payment Advances
shall be in consideration for, and conditioned upon, CSFB Mortgage Loan
Seller's agreement to reimburse the Servicer therefor pursuant to the
applicable agreement between the Servicer and the CSFB Mortgage Loan Seller.
In no event shall the Servicer be entitled to reimbursement from the Trust
Fund for any Yield Protection Payment Advance.
SECTION 4.04. Allocation of Collateral Support Deficit.
(a) On each Distribution Date, immediately following the
distributions to be made on such date pursuant to Section 4.01 and the
allocation of Certificate Deferred Interest pursuant to Section 4.06, the
Trustee shall calculate the amount, if any, by which (i) the aggregate Stated
Principal Balance of the Loans and any REO Loans expected to be outstanding
immediately following such Distribution Date is less than (ii) the then
aggregate Certificate Balance of the Regular Certificates after giving effect
to distributions of principal on such Distribution Date and the allocation of
Certificate Deferred Interest pursuant to Section 4.06 (any such deficit, the
"Collateral Support Deficit"). Any allocation of Collateral Support Deficit to
a Class of Regular Certificates shall be made by reducing the Certificate
Balance thereof by the amount so allocated. Any Collateral Support Deficit
allocated to a Class of Regular Certificates shall be allocated among the
respective Certificates of such Class in proportion to the Percentage
Interests evidenced thereby. The allocation of Collateral Support Deficit
shall constitute an allocation of losses and other shortfalls experienced by
the Trust Fund. Reimbursement of previously allocated Collateral Support
Deficit will not constitute distributions of principal for any purpose and
will not result in an additional reduction in the Certificate Balance of the
Class of Certificates in respect of which any such reimbursement is made.
(b) On each Distribution Date, the Certificate Balances of the
Regular Certificates will be reduced without distribution to the extent of any
Collateral Support Deficit, if any, allocable to such Certificates with
respect to such Distribution Date. Such reductions shall be allocated among
the respective Certificates as follows: first, to the Class J Certificates;
second, to the Class I Certificates; third, to the Class H Certificates;
fourth, to the Class G Certificates; fifth, to the Class F Certificates;
sixth, to the Class E Certificates; seventh, to the Class D Certificates,
eighth, to the Class C Certificates and ninth, to the Class B Certificates, in
each case, until the remaining Certificate Balance of each such Class of
Certificates has been reduced to zero. Following the reduction of the
Certificate Balances of all such Classes to zero, any remaining Collateral
Support Deficit shall be allocated among the Class A-1, and Class A-2
Certificates, pro rata (based upon the Certificate Balance of each such
Class), until the remaining Certificate Balances of such Classes have been
reduced to zero. Any Collateral Support Deficit allocated to a Class of
Certificates will be allocated among respective Certificates of such Class in
proportion to the Percentage Interests evidenced thereby.
(c) With respect to any Distribution Date, any Collateral Support
Deficit allocated to a Class of Certificates pursuant to Section 4.04(b) with
respect to such Distribution Date shall reduce the Intermediate-Tier Principal
Amounts of the Related Uncertificated Intermediate-Tier Interest with respect
thereto as a write-off.
SECTION 4.05. Appraisal Reductions.
The aggregate Appraisal Reductions will be allocated by the Trustee on
each Distribution Date to the Certificate Balance of the Class J, Class I,
Class H, Class G, Class F, Class E, Class D, Class C and Class B Certificates,
in that order, up to the amount of their respective Certificate Balances, for
purposes of determining (x) the amount of P&I Advances with respect to the
related Loans, (y) Voting Rights and (z) the identity of the Controlling
Class. On any Distribution Date, an Appraisal Reduction that otherwise would
be allocated to a Class of Certificates shall be allocated to the next most
subordinate Class to the extent that the Certificate Balance on such
Distribution Date for such Class of Certificates (prior to taking the
Appraisal Reduction into account) is less than the Appraisal Reduction for
such Distribution Date.
By 4:00 p.m., New York City time, on the third Business Day immediately
preceding each Distribution Date with respect to which one or more Appraisal
Reductions exist, the Servicer shall notify the Trustee in writing of such
Appraisal Reductions and by the close of business of the second Business Day
immediately preceding each such Distribution Date, the Trustee shall identify
to the Servicer in writing each Class of Subordinate Certificates to which one
or more Appraisal Reductions shall be allocated on such Distribution Date, the
applicable Pass-Through Rate of each such Class, and the amount of Appraisal
Reductions allocated to each such Class.
SECTION 4.06. Certificate Deferred Interest.
(a) On each Distribution Date, the Monthly Interest Distributable Amount
for the Regular Certificates (other than the Class A-X Certificates) shall be
reduced by an amount of Certificate Deferred Interest equal to the aggregate
amount of Mortgage Deferred Interest for all Loans for the related Due Date
allocated to such Class of Certificates, the amount representing such
Certificate Deferred Interest to be allocated, to the Class J Certificates, to
the Class I Certificates, to the Class H Certificates, to the Class G
Certificates, to the Class F Certificates, to the Class E Certificates, to the
Class D Certificates, to the Class C Certificates, and the Class B
Certificates, in that order. If the Certificate Balance of at least one Class
of Class A Certificates is not zero, then any amounts representing Certificate
Deferred Interest after allocation thereof to the Subordinate Certificates in
accordance with the preceding sentence will be allocated to the Class A
Certificates pro rata on the basis of the respective interest entitlements of
such Class on such date (before giving effect to any reduction therefrom on
such Distribution Date).
(b) On each Distribution Date, the Certificate Balances of the Class A-1,
Class A-2, Class B, Class C, Class D, Class E, Class F, Class G, Class H,
Class I and Class J Certificates shall be increased (except for the purposes
of determining Voting Rights or the identity of the Controlling Class) by the
amount of the Certificate Deferred Interest allocated to such Class of
Certificates on such Distribution Date pursuant to Section 4.06(a) above.
(c) With respect to any Distribution Date, any Certificate Deferred
Interest with respect to such Distribution Date allocated pursuant to Section
4.06(a) to a Class of Certificates shall be allocated in reduction of the
amount of interest distributable to the Related Uncertificated
Intermediate-Tier Interest with respect thereto. On each Distribution Date, to
the extent provided in Section 4.06(b), Certificate Deferred Interest will be
added to the Intermediate-Tier Principal Amount of the Uncertificated
Intermediate-Tier Interests in the same manner as the interest thereon was
reduced pursuant to the preceding sentence.
SECTION 4.07. Grantor Trust Reporting.
The parties intend that the portions of the Trust Fund consisting of
Excess Interest, the Excess Interest Distribution Account, Yield Protection
Payments and the Yield Protection Payment Account shall constitute, and that
the affairs of the Trust Fund (exclusive of the Upper-Tier REMIC,
Intermediate-Tier REMIC and the Lower-Tier REMIC) shall be conducted so as to
qualify such portions as, a "grantor trust" under the Code, and the provisions
hereof shall be interpreted consistently with this intention. In furtherance
of such intention, the Trustee (i) shall furnish or cause to be furnished to
Class V Certificateholders and shall file or cause to be filed with the
Internal Revenue Service together with Form 1041 or such other form as may be
applicable, information returns with respect to income relating to their share
of Excess Interest and, at the time or times and in the manner required by the
Code and (ii) shall furnish or cause to be furnished to the Class A-X
Certificateholders and to the Holders of any Class of Regular Certificates
receiving a Regular Yield Protection Payment Amount, and shall file or cause
to be filed with the Internal Revenue Service together with Form 1041 or such
other form as may be applicable, information returns with respect to income
relating to their applicable share of Yield Protection Payments at the time or
times and in the manner required by the Code.
[End of Article IV]
ARTICLE V
THE CERTIFICATES
SECTION 5.01. The Certificates.
(a) The Private Certificates will be offered only to Qualified
Institutional Buyers, Accredited Investors and Non-U.S. Persons. Interests in
the Class F and Class G Certificates will be offered (i) in the form of
beneficial interests in restricted global certificates in definitive, fully
registered form without interest coupons, deposited with the Trustee, as
custodian for DTC, and registered in the name of Cede & Co. ("Cede") DTC's
nominee or (ii) in fully registered, certificated form. The Class H, Class I
and Class J Certificates will be offered in fully registered, certificated
form. The Chase Manhattan Bank will initially serve as certificate registrar
(in such capacity, the "Certificate Registrar") for purposes of recording or
otherwise providing for the registration of the Private Certificates.
Class F Certificates and Class G Certificates sold in reliance on
Rule 144A under the Securities Act will be represented by one or more Private
Global Certificates (each, a "Rule 144A Global Certificate"). Class F
Certificates and Class G Certificates sold in reliance on Regulation S under
the Securities Act will be represented by one or more Private Global
Certificates (each, a "Regulation S Global Certificate"). Beneficial interests
in a Regulation S Global Certificate may be held only through Euroclear or
Cedel at any time and may not be held by a U.S. Person at any time.
(b) The Certificates shall be substantially in the respective forms
annexed hereto as Exhibits A-1 through and including A-8. The Certificates
shall be issuable in registered form only; provided, however, that in
accordance with Section 5.03, beneficial ownership interests in the Regular
Certificates (other than the Private Definitive Certificates) shall initially
be held and transferred through the book-entry facilities of the Depository.
The Class V, Class R and Class LR Certificates, and all Private Definitive
Certificates, shall be issuable as Definitive Certificates. Each Certificate
shall share ratably in all rights of the related Class.
The Class A-X Certificates shall be issuable only in Denominations
of authorized initial Notional Balance of not less than $100,000 and integral
multiples of $10,000 in excess thereof. If the initial Notional Amount does
not equal an integral multiple of $10,000, then a single additional Class A-X
Certificate may be issued in a Denomination of not less than $100,000 that
includes the excess of (i) such initial Notional Amount over (ii) the largest
integral multiple of $10,000 that does not exceed such Certificate Balance.
The Regular Certificates (other than the Class A-X Certificates) will be
issuable only in Denominations of authorized initial Certificate Balance of
not less than $10,000, and integral multiples of $1,000 in excess thereof;
provided, however, that if the Certificate Balance of the Class J Certificates
does not equal an integral multiple of $1,000, then a single additional
certificate of such Class may be issued in a Denomination of not less than
$10,000 that includes the excess of (a) such initial Certificate Balance over
(b) the largest integral multiple of $1,000 that does not exceed such
Certificate Balance. The Class V, Class R and Class LR Certificates will be
issuable only as one or more Definitive Certificates in Denominations
representing Percentage Interests of not less than 15%.
With respect to any Certificate or any beneficial interest in a
Certificate, the "Denomination" thereof shall be (i) the amount set forth on
the face thereof or on a schedule attached thereto, (ii) in the case of any
beneficial interest in a Book-Entry Certificate, the interest of the related
Certificate Owner in the applicable Class of Certificates as reflected on the
books and records of the Depository or related Depository Participants, as
applicable, (iii) expressed in terms of initial Certificate Balance or initial
Notional Balance, as applicable, and (iv) in an authorized Denomination, as
set forth above. The Book-Entry Certificates will be issued as one or more
certificates registered in the name of a nominee designated by the Depository,
and Certificate Owners will hold interests in the Book-Entry Certificates
through the book-entry facilities of the Depository in the minimum
Denominations and aggregate Denominations as set forth in the above.
The Holder of a Class F or Class G Certificate represented by a
Private Definitive Certificate shall be entitled to exchange such Certificate
for an interest in a Private Global Certificate, in accordance with the
procedures described in Section 5.03(g). A Certificate Owner of a Private
Global Certificate shall be entitled to receive a Definitive Certificate
representing its interest in such Certificate in accordance with the
procedures described in Section 5.03(c)(i). No Certificate Owner of a Public
Certificate of any Class shall be entitled to receive a Definitive Certificate
representing its interest in such Class, except as provided in Section
5.03(c)(ii). Unless and until Definitive Certificates are issued in respect of
a Class of Public Certificates, or in substitution for a Certificate that is a
Private Global Certificate, beneficial ownership interests in such Class of
Certificates, or in such Private Global Certificate, shall be maintained and
transferred on the book-entry records of the Depository and Depository
Participants, and all references to actions by Holders of such Class of
Certificates, or Holders of such Private Global Certificates, shall be
references to actions taken by the Depository upon instructions received from
the related registered Holders of Certificates through the Depository
Participants in accordance with the Depository's procedures and, except as
otherwise set forth herein, all references herein to payments, notices,
reports and statements to Holders of such Class of Certificates, or Holders of
Private Global Certificates shall be references to payments, notices, reports
and statements to the Depository or its nominee as the registered Holder
thereof, for distribution to the related registered Holders of Certificates
through the Depository Participants in accordance with the Depository's
procedures.
(c) The Certificates shall be executed by manual or facsimile
signature on behalf of the Certificate Registrar by an authorized officer.
Certificates bearing the manual or facsimile signatures of individuals who
were at any time the authorized officers of the Certificate Registrar shall be
entitled to all benefits under this Agreement, subject to the following
sentence, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such
Certificates or did not hold such offices at the date of such Certificates. No
Certificate shall be entitled to any benefit under this Agreement, or be valid
for any purpose, however, unless there appears on such Certificate a
certificate of authentication substantially in the form provided for herein
executed by the Authenticating Agent by manual signature, and such certificate
of authentication upon any Certificate shall be conclusive evidence, and the
only evidence, that such Certificate has been duly authenticated and delivered
hereunder. All Certificates shall be dated the date of their authentication.
The Chase Manhattan Bank is hereby initially appointed Authenticating Agent
with power to act on the Trustee's behalf in the authentication and delivery
of the Certificates in connection with transfers and exchanges as herein
provided. If the Authenticating Agent resigns or is terminated, the Trustee
shall appoint a successor Authenticating Agent which may be the Trustee or an
Affiliate thereof.
(d) Any of the Certificates may be issued with appropriate
insertions, omissions, substitutions and variations, and may have imprinted or
otherwise reproduced thereon such legend or legends, not inconsistent with the
provisions of this Agreement, as may be required to comply with any law or
with rules or regulations pursuant thereto, or with the rules of any
securities market in which the Certificates are admitted to trading, or to
conform to general usage.
SECTION 5.02 Registration of Transfer and Exchange of Certificates.
(a) At all times during the term of this Agreement, there shall be
maintained at the office of the Certificate Registrar a Certificate Register
in which, subject to such reasonable regulations as the Certificate Registrar
may prescribe, the Certificate Registrar shall provide for the registration of
Certificates and of transfers and exchanges of Certificates as herein
provided. The Chase Manhattan Bank is hereby initially appointed Certificate
Registrar for the purpose of registering Certificates and transfers and
exchanges of Certificates as herein provided. The Certificate Registrar may
appoint, by a written instrument delivered to the Depositor, the Trustee, the
Special Servicer and the Servicer, any other bank or trust company to act as
Certificate Registrar under such conditions as the predecessor Certificate
Registrar may prescribe, provided that the predecessor Certificate Registrar
shall not be relieved of any of its duties or responsibilities hereunder by
reason of such appointment.
If The Chase Manhattan Bank resigns as Certificate Registrar, the
entity succeeding The Chase Manhattan Bank as Trustee shall immediately
succeed to its predecessor's duties as Certificate Registrar. The Depositor,
the Trustee, the Servicer and the Special Servicer shall have the right to
inspect the Certificate Register or to obtain a copy thereof at all reasonable
times, and to rely conclusively upon a certificate of the Certificate
Registrar as to the information set forth in the Certificate Register. The
names and addresses of all Certificateholders and the names and addresses of
the transferees of any Certificates shall be registered in the Certificate
Register; provided, however, in no event shall the Certificate Registrar be
required to maintain in the Certificate Register the names of Certificate
Owners.
The Person in whose name any Certificate is so registered shall be
deemed and treated as the sole owner and Holder thereof for all purposes of
this Agreement and the Certificate Registrar, the Servicer, the Trustee, the
Special Servicer and any agent of any of them shall not be affected by any
notice or knowledge to the contrary. A Definitive Certificate is transferable
or exchangeable only upon the surrender of such Certificate to the Certificate
Registrar at its office maintained at 450 West 33rd Street, 8th Floor, New
York, New York 10001, or at the Corporate Trust Office, if the Trustee is the
Certificate Registrar (the "Registrar Office") together with an assignment and
transfer (executed by the Holder or his duly authorized attorney).
Subject to the requirements of Sections 5.02(b), (c) and (d), the
Certificate Registrar shall execute and the Authenticating Agent shall duly
authenticate in the name of the designated transferee or transferees, in the
case of a Definitive Certificate being surrendered in exchange for one or more
new Definitive Certificates, one or more new Certificates in Denominations
equal in the aggregate to the Denomination of the Definitive Certificate being
surrendered. Such new Certificates shall be delivered by the Certificate
Registrar in accordance with Section 5.02(e).
Each Certificate surrendered for registration of transfer shall be
canceled, and the Certificate Registrar shall hold such canceled Certificate
in accordance with its standard procedures.
(b) No transfer of any Non-Registered Certificate shall be made
unless that transfer is made pursuant to an effective registration statement
under the Securities Act, and effective registration or qualification under
applicable state securities laws, or is made in a transaction which does not
require such registration or qualification. If a transfer (other than one by
the Depositor to an Affiliate thereof) of a Non-Registered Certificate is to
be made in reliance upon an exemption from the Securities Act, and under the
applicable state securities laws, then either:
(i) (A) the Certificate Registrar shall require the transferee to
deliver to the Certificate Registrar an investment representation letter
substantially in the form of Exhibit C-1 attached hereto (a "QIB
Investment Representation Letter"), which shall certify, among other
things, that the transferee is a "qualified institutional buyer" as
defined in Rule 144A under the Securities Act (a "Qualified Institutional
Buyer"); or
(B) the Certificate Registrar shall require the transferee to deliver
to the Certificate Registrar an investment representation letter
substantially in the form of Exhibit C-2 attached hereto (a "Regulation S
Investment Representation Letter"), which will certify, among other
things, that the transferee is not a "U.S. Person" within the meaning of
Regulation S under the Securities Act; or
(C) if the Non-Registered Certificate is a Private Definitive
Certificate, the Certificate Registrar shall require the transferee to
deliver to the Certificate Registrar an investment representation letter
substantially in the form of Exhibit C-3 attached hereto, which shall
certify, among other things, that the transferee is an "accredited
investor" as defined in Rule 501(a)(1), (2), (3) or (7) under the
Securities Act (an "Accredited Investor") and is acquiring such
Non-Registered Certificate for investment, either for its own account
(and not for the account of others) or as a fiduciary or agent for others
(which others also are Accredited Investors), and not with a view to, or
for offer or sale in connection with, the public distribution thereof.
If the certification described in the preceding clause (i) cannot be
provided, (a) the Certificate Registrar shall require an Opinion of Counsel
reasonably satisfactory to the Certificate Registrar and the Depositor that
such transfer may be made pursuant to an exemption, describing the applicable
exemption and the basis therefor, from registration or qualification under the
Securities Act, applicable state securities laws and other relevant laws,
which Opinion of Counsel shall not be at the expense of the Trust Fund, the
Certificate Registrar, the Depositor or the Trustee and (b) the Certificate
Registrar shall require the transferor (other than the Underwriter, in
connection with its initial transfer of the Certificate being transferred) to
execute a certification in form and substance satisfactory to the Certificate
Registrar setting forth the facts surrounding such transfer; provided,
however, that a transfer of a Non-Registered Certificate of any such Class may
be made to a trust if the transferor provides to the Certificate Registrar and
to the Trustee a certification that interests in such trust may only be
transferred subject to requirements substantially to the effect set forth in
this Section 5.02.
The Servicer shall furnish, or cause to be furnished, upon the
request of any Holder of Non-Registered Certificates, to a prospective
purchaser of such Non-Registered Certificates who is a Qualified Institutional
Buyer, all Statements to Certificateholders, servicing reports and any such
information as is specified in paragraph (d)(4) of Rule 144A with respect to
the Trust Fund, unless, at the time of such request, the entity with respect
to which such information is to be provided is subject to the reporting
requirements of Section 13 or 15(d) of the Exchange Act. None of the
Depositor, the Trustee, the 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 Non-Registered
Certificate without registration or qualification. Any Holder of a
Non-Registered Certificate desiring to effect such a transfer shall, and does
hereby agree to, indemnify the Depositor, the Trustee, the Servicer and the
Certificate Registrar against any liability that may result if the transfer is
not so exempt or is not made in accordance with such federal and state laws.
Unless the Certificate Registrar determines otherwise in accordance with
applicable law and the rules and procedures of, or applicable to, the
Depository (the "Depository Rules"), transfers of a beneficial interest
Private Global Certificate that is not rated in one of the top four rating
categories by a nationally recognized statistical rating organization may be
effectuated only by means of an "SRO Rule 144A System" approved for such
purpose by the Commission.
No Class V Certificate may be transferred to an "Ineligible Class V
Owner."
(c) (i) Unless a Class of Private Global Certificates has been
registered under the Securities Act, each Certificate of such Class shall bear
a legend substantially to the following effect:
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"),
OR ANY STATE SECURITIES LAWS. NEITHER THIS CERTIFICATE NOR
ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED,
SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION
OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT
TO, REGISTRATION UNDER THE SECURITIES ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT
TO OFFER, SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN
ACCORDANCE WITH ALL APPLICABLE STATE SECURITIES LAWS AND (A)
PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED
EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS THIS
CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY
BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE
144A IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (C) TO
A PERSON WHO IS NOT A "U.S. PERSON" AS DEFINED IN REGULATION S UNDER
THE SECURITIES ACT, (D) ONLY IF THE INTEREST OF PROPOSED TRANSFEREE
WILL BE REPRESENTED BY A PRIVATE DEFINITIVE CERTIFICATE, TO A PERSON
THE SELLER REASONABLY BELIEVES IS AN INSTITUTIONAL "ACCREDITED
INVESTOR" AS DEFINED IN RULE 501(A)(1), (2), (3) OR (7) UNDER THE
SECURITIES ACT (AN "ACCREDITED INVESTOR"), THAT IS ACQUIRING THIS
CERTIFICATE FOR ITS OWN ACCOUNT (AND NOT FOR THE ACCOUNT OF OTHERS)
OR AS A FIDUCIARY OR AGENT FOR OTHERS (WHICH OTHERS ALSO ARE
ACCREDITED INVESTORS) FOR INVESTMENT AND NOT WITH A VIEW TO, OR FOR
OFFER OR SALE IN CONNECTION WITH, THE PUBLIC DISTRIBUTION HEREOF OR
(E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING
CASES TO THE COMPLETION AND DELIVERY BY THE TRANSFEROR TO THE
CERTIFICATE REGISTRAR OF A CERTIFICATE OF TRANSFER IN THE FORM
APPEARING ON THE LAST PAGE OF THIS CERTIFICATE.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF
REPRESENTS AND WARRANTS THAT EITHER (i) IT IS NOT (A) AN
EMPLOYEE BENEFIT PLAN THAT IS SUBJECT TO THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED, (B) A
PLAN OR OTHER ARRANGEMENT (INCLUDING AN INDIVIDUAL
RETIREMENT ACCOUNT OR KEOGH PLAN) THAT IS SUBJECT TO
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS
AMENDED, OR (C) AN ENTITY WHOSE UNDERLYING ASSETS INCLUDE
"PLAN ASSETS" UNDER THE PLAN ASSET REGULATION BY REASON OF
ANY SUCH PLAN'S INVESTMENT IN THE ENTITY OR (ii) ITS
PURCHASE AND HOLDING OF THIS CERTIFICATE WILL NOT RESULT
IN A NON-EXEMPT PROHIBITED TRANSACTION UNDER ERISA OR THE
CODE AND WILL NOT SUBJECT THE TRUSTEE, THE CERTIFICATE
REGISTRAR, THE SERVICER, THE SPECIAL SERVICER, THE
UNDERWRITER, THE INITIAL PURCHASER OR THE DEPOSITOR TO ANY
LIABILITIES OR OBLIGATIONS IN ADDITION TO THOSE UNDERTAKEN
IN THE POOLING AND SERVICING AGREEMENT.
THE HOLDER OF THIS CERTIFICATE, AND EACH SUBSEQUENT
PURCHASER OF THIS CERTIFICATE, BY PURCHASING THIS
CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO HAVE
AGREED TO COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET
FORTH IN THE POOLING AND SERVICING AGREEMENT, AND SUCH
HOLDER SHALL, AND EACH SUBSEQUENT PURCHASER SHALL BE
REQUIRED TO, NOTIFY ANY PURCHASER OF THIS CERTIFICATE FROM
IT OF THE RESALE RESTRICTIONS REFERRED TO IN THE PREVIOUS
PARAGRAPH. A TRANSFEREE IS ALSO REQUIRED TO DELIVER AN
INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY IN THE FORM
OF AN EXHIBIT TO THE POOLING AND SERVICING AGREEMENT IF
SUCH TRANSFEREE IS A QUALIFIED INSTITUTIONAL BUYER AND
SHALL ALSO BE REQUIRED TO DELIVER AN OPINION OF COUNSEL IF
SUCH TRANSFEREE IS NOT A QUALIFIED INSTITUTIONAL BUYER
WITHIN THE MEANING OF RULE 144A OR IS A U.S. PERSON WITHIN
THE MEANING OF RULE 902 UNDER REGULATION S.
(d) (ii) Unless a Class of Private Definitive Certificates has been
registered under the Securities Act, each Certificate of such Class shall bear
a legend substantially to the following effect:
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"),
OR ANY STATE SECURITIES LAWS. NEITHER THIS CERTIFICATE NOR
ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED,
SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION
OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT
TO, REGISTRATION UNDER THE SECURITIES ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF
AGREES NOT TO OFFER, SELL OR OTHERWISE TRANSFER SUCH
CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL APPLICABLE STATE
SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION
STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE
SECURITIES ACT, (B) FOR SO LONG AS THIS CERTIFICATE IS
ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER
REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER"
AS DEFINED IN RULE 144A IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (C) TO A PERSON WHO IS NOT A
"U.S. PERSON" AS DEFINED IN REGULATION S UNDER THE
SECURITIES ACT, (D) TO A PERSON THE SELLER REASONABLY
BELIEVES IS AN "INSTITUTIONAL ACCREDITED INVESTOR" AS
DEFINED IN RULE 501(A)(1), (2), (3) OR (7) UNDER THE
SECURITIES ACT (AN "ACCREDITED INVESTOR"), THAT IS
ACQUIRING THIS CERTIFICATE FOR ITS OWN ACCOUNT (AND NOT
FOR THE ACCOUNT OF OTHERS) OR AS A FIDUCIARY OR AGENT FOR
OTHERS (WHICH OTHERS ALSO ARE ACCREDITED INVESTORS) FOR
INVESTMENT AND NOT WITH A VIEW TO, OR FOR OFFER OR SALE IN
CONNECTION WITH, THE PUBLIC DISTRIBUTION HEREOF OR (E)
PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT
IN EACH OF THE FOREGOING CASES TO THE COMPLETION AND
DELIVERY BY THE TRANSFEROR TO THE CERTIFICATE REGISTRAR OF
A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE
LAST PAGE OF THIS CERTIFICATE.
[WITH RESPECT TO THE CLASS V CERTIFICATES ONLY:] THE
HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES
NOT TO OFFER, SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE
TO ANY PERSON THAT IS AN "INELIGIBLE CLASS V OWNER" (AS
DEFINED IN THE POOLING AND SERVICING AGREEMENT).
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF
REPRESENTS AND WARRANTS THAT EITHER (i) IT IS NOT (A) AN
EMPLOYEE BENEFIT PLAN THAT IS SUBJECT TO THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED, (B) A
PLAN OR OTHER ARRANGEMENT (INCLUDING AN INDIVIDUAL
RETIREMENT ACCOUNT OR KEOGH PLAN) THAT IS SUBJECT TO
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS
AMENDED, OR (C) AN ENTITY WHOSE UNDERLYING ASSETS INCLUDE
"PLAN ASSETS" UNDER THE PLAN ASSET REGULATION BY REASON OF
ANY SUCH PLAN'S INVESTMENT IN THE ENTITY OR (ii) ITS
PURCHASE AND HOLDING OF THIS CERTIFICATE WILL NOT RESULT
IN A NON-EXEMPT PROHIBITED TRANSACTION UNDER ERISA OR THE
CODE AND WILL NOT SUBJECT THE TRUSTEE, THE CERTIFICATE
REGISTRAR, THE SERVICER, THE SPECIAL SERVICER, THE
UNDERWRITER, THE INITIAL PURCHASER OR THE DEPOSITOR TO ANY
LIABILITIES OR OBLIGATIONS IN ADDITION TO THOSE UNDERTAKEN
IN THE POOLING AND SERVICING AGREEMENT.
THE HOLDER OF THIS CERTIFICATE, AND EACH SUBSEQUENT
PURCHASER OF THIS CERTIFICATE, BY PURCHASING THIS
CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO HAVE
AGREED TO COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET
FORTH IN THE POOLING AND SERVICING AGREEMENT, AND SUCH
HOLDER SHALL, AND EACH SUBSEQUENT PURCHASER SHALL BE
REQUIRED TO, NOTIFY ANY PURCHASER OF THIS CERTIFICATE FROM
IT OF THE RESALE RESTRICTIONS REFERRED TO IN THE PREVIOUS
PARAGRAPH. A TRANSFEREE IS ALSO REQUIRED TO DELIVER AN
INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY IN THE FORM
OF AN EXHIBIT TO THE POOLING AND SERVICING AGREEMENT AND
SHALL ALSO BE REQUIRED TO DELIVER AN OPINION OF COUNSEL IF
SUCH TRANSFEREE IS NOT A QUALIFIED INSTITUTIONAL BUYER
WITHIN THE MEANING OF RULE 144A OR IS A U.S. PERSON WITHIN
THE MEANING OF RULE 902 UNDER REGULATION S.
(e) With respect to any Certificate other than a Class A Certificate
or a Class A-X Certificate, no sale, transfer, pledge or other disposition by
any Holder of any such Certificate shall be made unless the Certificate
Registrar shall have received either (i) a representation letter from the
proposed purchaser or transferee of such Certificate to the effect that such
proposed purchaser or transferee is not (a) an employee benefit plan subject
to the fiduciary responsibility provisions of ERISA or Section 4975 of the
Code, or a governmental plan (as defined in Section 3(32) of ERISA) subject to
any federal, state or local law ("Similar Law") which is, to a material
extent, similar to the foregoing provisions of ERISA or the Code (each a
"Plan") or (b) a person acting on behalf of or using the assets of any such
Plan (including an entity whose underlying assets include Plan assets by
reason of investment in the entity by such Plan and the application of
Department of Labor Regulation ss. 2510.3-101), other than (except in the case
of a Class R Certificate) an insurance company using the assets of its general
account under circumstances whereby the purchase and holding of such
Certificates by such insurance company would be eligible for the exemptive
relief from the prohibited transaction provisions of ERISA and Section 4975 of
the Code that is available under Sections I and III of Prohibited Transaction
Class Exemption 95-60 (it being understood that delivery of a representation
letter containing a representation substantially in the form of paragraph 8 of
Exhibit C attached hereto shall satisfy the requirement of this Section
5.02(d)(i)), or (ii) if such Certificate is presented for registration in the
name of a purchaser or transferee that is any of the foregoing, an Opinion of
Counsel in form and substance satisfactory to the Trustee, the Certificate
Registrar and the Depositor to the effect that the acquisition and holding of
such Certificate by such purchaser or transferee will not constitute or result
in a non-exempt prohibited transaction under ERISA, Section 4975 of the Code
or any Similar Law and will not subject the Trustee, the Certificate
Registrar, the Servicer, the Special Servicer, the Underwriter, the Initial
Purchaser or the Depositor to any obligation or liability (including
obligations or liabilities under ERISA, Section 4975 of the Code or any
Similar Law) in addition to those set forth in the Agreement.
The Certificate Registrar shall not register the sale, transfer,
pledge or other disposition of any such Certificate unless the Certificate
Registrar has received either the representation letter described in clause
(i) above or the Opinion of Counsel described in clause (ii) above. The costs
of any of the foregoing representation letters or Opinions of Counsel shall
not be borne by any of the Depositor, the Servicer, the Special Servicer, the
Trustee and the Trust Fund. Each Certificate Owner of a Certificate other than
a Class A or Class A-X Certificate shall be deemed to represent that it is not
a Person specified in clauses (a), or (b) above. Any transfer, sale, pledge or
other disposition of any such Certificates that would constitute or result in
a prohibited transaction under ERISA, Section 4975 of the Code or any Similar
Law, or would otherwise violate the provisions of this Section 5.02(c) shall
be deemed absolutely null and void ab initio, to the extent permitted under
applicable law
So long as any Class of Certificates other than the Class A and
Class A-X Certificates remains outstanding, the Servicer will make available,
or cause to be made available, upon written request with sufficient notice
during normal business hours, to any Holder and any Person to whom any such
Certificate of any such Class of Certificates may be offered or sold,
transferred, pledged or otherwise disposed of by such Holder, information with
respect to the Servicer, the Special Servicer or the Loans reasonably
necessary to the provision of an Opinion of Counsel described in this Section
5.02(c).
(f) Notwithstanding any provision to the contrary herein, so long as
a Private Global Certificate remains outstanding and is held by or on behalf
of DTC, transfers of a Private Global Certificate, in whole or in part, shall
only be made in accordance with this Article V.
(i) Regulation S Global Certificate to Rule 144A Global Certificate.
If a holder of a beneficial interest in a Regulation S Global Certificate
deposited with DTC wishes at any time to transfer its interest in such
Regulation S Global Certificate to a Person who wishes to take delivery
thereof in the form of a Rule 144A Global Certificate, such holder may,
subject to the rules and procedures of Euroclear, Cedel or DTC, as the
case may be, exchange or cause the exchange of such interest for an
equivalent beneficial interest in a Rule 144A Global Certificate. Upon
receipt by the Trustee, as custodian for DTC, of (A) instructions from
Euroclear, Cedel or DTC, as the case may be, directing the Trustee, as
such custodian, to cause to be issued a Rule 144A Global Certificate in
an amount equal to the beneficial interest in such Regulation S Global
Certificate, but not less than the minimum denomination applicable to
such holder's Certificates to be exchanged, and (B) a certificate in the
form of Exhibit C-1 attached hereto given by the holder of such
beneficial interest and stating, among other things, that the Person
transferring such beneficial interest in such Regulation S Global
Certificate reasonably believes that the Person acquiring such interest
in a Rule 144A Global Certificate is a qualified institutional buyer
within the meaning of Rule 144A, is obtaining such beneficial interest in
a transaction meeting the requirements of Rule 144A and in accordance
with any applicable Securities laws of any State of the United States or
any other applicable jurisdiction and that such Person acquiring such
Rule 144A Global Certificate is a "U.S. person" as defined in Regulation
S under the Securities Act, then Euroclear or Cedel or the Trustee, as
custodian for DTC, as the case may be, will instruct the Trustee, as
custodian for DTC, to reduce the Regulation S Global Certificate by the
aggregate principal amount of the Rule 144A Global Certificate to be
transferred and the Trustee, as such custodian, shall authenticate and
deliver such Rule 144A Global Certificate, concurrently with such
reduction, to the Person specified in such instructions with an
outstanding principal amount equal to the reduction in the principal
amount of the Regulation S Global Certificate.
(ii) Rule 144A Global Certificate to Regulation S Global
Certificate. If a holder of a beneficial interest in one or more Rule
144A Global Certificates wishes at any time to exchange its interest in
such Rule 144A Global Certificate for an interest in a Regulation S
Global Certificate, or to transfer its interest in such Rule 144A Global
Certificate to a Person who wishes to take delivery thereof in the form
of an interest in a Regulation S Global Certificate, such holder,
provided such holder is not a U.S. Person, may exchange or cause the
exchange of such interest for an equivalent beneficial interest in a
Regulation S Global Certificate. Upon receipt by the Trustee, as
custodian for DTC, of (A) such Rule 144A Global Certificate properly
endorsed for such transfer and written instructions from such holder
directing the Trustee, as such custodian, to cause to be credited a
beneficial interest in a Regulation S Global Certificate in an amount
equal to the beneficial interest in the Rule 144A Global Certificate, but
not less than the minimum denomination applicable to such holder's
Certificates held through a Regulation S Global Certificate, to be
exchanged, (B) a written order containing information regarding the
Euroclear or Cedel account to be credited with such increase and (C) a
certificate in the form of Exhibit C-2 attached hereto given by the
holder of such beneficial interest stating that the exchange or transfer
of such interest has been made in compliance with the transfer
restrictions applicable to the Private Global Certificates, including
that the holder is not a U.S. Person, and pursuant to and in accordance
with Regulation S under the Securities Act, the Trustee, as custodian for
DTC, shall record the transfer in the Registrar Office and shall increase
the principal amount of the Regulation S Global Certificate by the
outstanding principal amount of the beneficial interest in the Rule 144A
Global Certificate to be exchanged, and to credit, or cause to be
credited to the account of the Person specified in such instructions, a
beneficial interest in the Regulation S Global Certificate equal to the
amount specified in the instructions received pursuant to clause (i)
above.
(g) (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) below to
deliver payments to a Person other than such Person. The rights of each Person
acquiring any Ownership Interest in a Residual Certificate are expressly
subject to the following provisions:
(A) No Person holding or acquiring any Ownership Interest in a
Residual Certificate shall be a Disqualified Organization or agent
thereof (including a nominee, middleman or similar person) (an
"Agent"), a Plan or a Person acting on behalf of or investing the
assets of a Plan (such Plan or Person, an "ERISA Prohibited Holder")
or a Non-U.S. Person and shall promptly notify the Servicer, the
Trustee and the Certificate Registrar of any change or impending
change to such status;
(B) In connection with any proposed Transfer of any Ownership
Interest in a Residual Certificate, the Certificate Registrar shall
require delivery to it, and no Transfer of any Residual Certificate
shall be registered until the Certificate Registrar receives, an
affidavit substantially in the form attached hereto as Exhibit D-1
(a "Transfer Affidavit") from the proposed Transferee, in form and
substance satisfactory to the Certificate Registrar, representing
and warranting, among other things, that such Transferee is not a
Disqualified Organization or Agent thereof, an ERISA Prohibited
Holder or a Non-U.S. Person, and that it has reviewed the provisions
of this Section 5.02(d) and agrees to be bound by them;
(C) Notwithstanding the delivery of a Transfer Affidavit by a
proposed Transferee under clause (b) above, if a Responsible Officer
of the Certificate Registrar has actual knowledge that the proposed
Transferee is a Disqualified Organization or Agent thereof, an ERISA
Prohibited Holder or a Non-U.S. Person, no Transfer of an Ownership
Interest in a Residual Certificate to such proposed Transferee shall
be effected; and
(D) Each Person holding or acquiring any Ownership Interest in
a Residual Certificate shall agree (1) to require a Transfer
Affidavit 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 Certificate Registrar
a letter substantially in the form attached hereto as Exhibit D-2 (a
"Transferor Letter") certifying that, among other things, it has no
actual knowledge that such prospective Transferee is a Disqualified
Organization or Agent thereof, an ERISA Prohibited Holder or a
Non-U.S. Person and that (if the Transferor is not a U.S. Person)
such transfer does not have the effect of allowing the Transferor to
avoid tax on accrued excess inclusions.
(ii) If any purported Transferee shall become a Holder of a Residual
Certificate in violation of the provisions of this Section 5.02(d), then
the last preceding Holder of such Residual Certificate that was in
compliance with the provisions of this Section 5.02(d) shall be restored,
to the extent permitted by law, to all rights as Holder thereof
retroactive to the date of registration of such Transfer of such Residual
Certificate. None of the Trustee, the Servicer, the Authenticating Age and
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 5.02(d) 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.
(iii) The Servicer shall make available to the Internal Revenue
Service and those Persons specified by the REMIC Provisions, upon written
request of the Trustee, all information in its possession and necessary
to compute any tax imposed as a result of the Transfer of an Ownership
Interest in a Residual Certificate to any Person who is a Disqualified
Organization or Agent thereof, including the information described in
Treasury regulations sections 1.860D-1(b)(5) and 1.860E-2(a)(5) with
respect to the "excess inclusions" of such Residual Certificate.
(h) Subject to the restrictions on transfer and exchange set forth
in this Section 5.02, the Holder of any Definitive Certificate may transfer or
exchange the same in whole or in part (with a Denomination equal to any
authorized denomination) by surrendering such Certificate at the Registrar
Office or at the office of any successor Certificate Registrar or transfer
agent appointed by the Certificate Registrar, together with an instrument of
assignment or transfer (executed by the Holder or its duly authorized
attorney), in the case of transfer, and a written request for exchange in the
case of exchange.
Following a proper request for transfer or exchange, the Certificate
Registrar shall, within five Business Days of such request if made at such
Registrar Office, or within 10 Business Days if made at the office of a
transfer agent (other than the Certificate Registrar), execute and deliver at
such Registrar Office or at the office of such transfer agent, as the case may
be, to the transferee (in the case of transfer) or Holder (in the case of
exchange) or send by first-Class mail (at the risk of the transferee in the
case of transfer or Holder in the case of exchange) to such address as the
transferee or Holder, as applicable, may request in writing, a Definitive
Certificate or Certificates, as the case may require, for a like aggregate
Denomination and in such Denomination or Denominations as may be requested.
The Certificate Registrar may decline to accept any request for an exchange or
registration of transfer of any Certificate during the period of 15 days
preceding any Distribution Date.
(i) If a Responsible Officer of the Certificate Registrar becomes
aware that a beneficial interest in a Private Global Certificate is being held
by or for the benefit of a Person who is not an Eligible Investor, or that a
Private Definitive Certificate is being held by or for the benefit of a Person
who is not an Eligible Investor or an Accredited Investor, or that, in either
case, such holding is unlawful under the laws of a relevant jurisdiction, then
the Certificate Registrar shall have the right, but not the obligation, to
void such transfer, if permitted under applicable law, or to require the
investor to sell (x) such Private Global Certificate to an Eligible Investor
or (y) the beneficial interest in such Private Definitive Certificate to an
Eligible Investor or an Accredited Investor, within 14 days after notice of
such determination, and each Certificateholder by its acceptance of a
Certificate authorizes the Certificate Registrar to take such action.
(j) The Certificate Registrar shall provide notice to the Trustee,
the Servicer, the Special Servicer and the Depositor of the transfer of any
Private Definitive Certificate for so long as any such Certificate is a
Definitive Certificate. The Certificate Owner of a Private Definitive
Certificate that wishes to receive the information described in Section
3.28(c) shall provide notice to the Trustee, the Servicer, the Special
Servicer and the Depositor of the transfer of any beneficial ownership in such
Private Definitive Certificate and of the address to which such information
should be sent. Upon the written request of the Trustee, the Servicer, the
Special Servicer or the Depositor, the Certificate Registrar shall provide
each such Person with an updated copy of the Certificate Register at the
expense of the requesting party.
(k) No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in this Section 5.02. With respect to any transfer or
exchange of any Certificate, the Certificate Registrar may require payment by
each transferor of a sum sufficient to cover any tax, expense or other
governmental charge payable in connection with any such transfer or exchange.
(l) All Certificates surrendered for transfer and exchange shall be
physically canceled by the Certificate Registrar, and the Certificate
Registrar shall hold such canceled Certificates in accordance with its
standard procedures.
SECTION 5.03. Book-Entry Certificates.
(a) The Regular Certificates (except, the Class H, Class I and Class
J Certificates) initially shall be issued as one or more Certificates
registered in the name of the Depository or its nominee and, except as
provided in subsection (c) below, transfer of such Certificates may not be
registered by the Certificate Registrar unless such transfer is to a successor
Depository that agrees to hold such Certificates for the respective
Certificate Owners with Ownership Interests therein. Such Certificate Owners
shall hold and transfer their respective Ownership Interests in and to such
Certificates through the book-entry facilities of the Depository and, in the
case of the Public Certificates (except as provided in subsection (c)(i)
below), shall not be entitled to Definitive Certificates in respect of such
Ownership Interests. All transfers by Certificate Owners of their respective
Ownership Interests in the Book-Entry Certificates shall be made in accordance
with the procedures established by the Depository Participant or brokerage
firm representing such Certificate Owner. Each Depository Participant shall
transfer the Ownership Interests in the Book-Entry Certificates of Certificate
Owners it represents or of brokerage firms for which it acts as agent only in
accordance with the Depository's normal procedures. Neither the Trustee nor
the Certificate Registrar shall have any responsibility to monitor or restrict
the transfer of any ownership interest in a Book-Entry Certificate
transferable through the book-entry facilities of the Depository.
(b) The Trustee, the Servicer, the Special Servicer, the Depositor
and the Certificate Registrar may for all purposes, including the making of
payments due on the Book-Entry Certificates, deal with the Depository as the
authorized representative of the Certificate Owners with respect to such
Certificates for the purposes of exercising the rights of Certificateholders
hereunder. The rights of Certificate Owners with respect to the Book-Entry
Certificates shall be limited to those established by law and agreements
between such Certificate Owners and the Depository Participants and brokerage
firms representing such Certificate Owners. Multiple requests and directions
from, and votes of, the Depository as Holder of the Book-Entry Certificates
with respect to any particular matter shall not be deemed inconsistent if they
are made with respect to different Certificate Owners. The Trustee may
establish a reasonable record date in connection with solicitations of
consents from or voting by Certificateholders and shall give notice to the
Depository of such record date.
(c) (i) Upon the request of any Certificate Owner of Private Global
Certificates, or the transferee of such Certificate Owner, that its interest
in such Private Global Certificates be exchanged for Private Definitive
Certificates, such Certificate Owner or transferee, upon presentation of
appropriate documentation to the Trustee as required by this Article V and
subject to the rules and procedures of the Depository, shall be entitled to be
issued one or more Private Definitive Certificates in denominations authorized
pursuant to Section 5.01(b) equal in the aggregate to the Denomination of such
interest in such Private Global Certificates. If (A)(1) the Depositor advises
the Trustee and the Certificate Registrar in writing that the Depository is no
longer willing or able to properly discharge its responsibilities with respect
to the Book-Entry Certificates and (2) the Depositor is unable to locate a
qualified successor, or (B) the Depositor at its option advises the Trustee
and the Certificate Registrar in writing that it elects to terminate the
book-entry system through the Depository with respect to some or all of the
Classes, or (C) the Trustee determines that Definitive Certificates are
required in accordance with the provisions of Section 5.03(e), the Trustee
shall notify the affected Certificate Owners, through the Depository with
respect to all Classes, any Class or any portion of any Class of the
Certificates, of the occurrence of any such event and of the availability of
Definitive Certificates to Certificate Owners requesting the same.
(ii) Upon surrender to the Certificate Registrar of the Book-Entry
Certificates by the Depository or any custodian acting on behalf of the
Depository, accompanied by registration instructions from the Depository
for registration of transfer, the Certificate Registrar shall execute,
and the Authenticating Agent shall authenticate and deliver, within five
Business Days of such request if made at the Registrar Office, or within
ten Business Days if made at the office of a transfer agent (other than
the Certificate Registrar), the Definitive Certificates to the
Certificate Owners identified in such instructions. None of the
Depositor, the Servicer, the Trustee, the Special Servicer, the
Authenticating Agent and the Certificate Registrar shall be liable for
any delay in delivery of such instructions and may conclusively rely on,
and shall be protected in relying on, such instructions. Upon the
issuance of Definitive Certificates for purposes of evidencing ownership
of any Class of Certificates, the registered Holders of such Definitive
Certificates shall be recognized as Certificateholders hereunder and,
accordingly, shall be entitled directly to receive payments on, to
exercise Voting Rights with respect to, and to transfer and exchange such
Definitive Certificates.
For purposes of any provision of this Pooling and Servicing
Agreement requiring or permitting actions with the consent of, or at the
direction of, Holders of Certificates evidencing a specified percentage
of the Voting Rights, such consent or direction may be given by a
combination of Certificate Owners (acting through the Depository and the
Depository Participants) owning Book-Entry Certificates, and
Certificateholders owning Definitive Certificates, evidencing in the
aggregate such specified percentage of the Voting Rights.
(d) The Book-Entry Certificates (i) shall be delivered by the
Certificate Registrar to the Depository, or pursuant to the Depository's
instructions, and shall be registered in the name of Cede & Co. and (ii) shall
bear a legend substantially to the following effect:
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK
CORPORATION ("DTC"), TO THE CERTIFICATE REGISTRAR FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO.
OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE &
CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
The Book-Entry Certificates may be deposited with such other
Depository as the Certificate Registrar may from time to time designate, and
shall bear such legend as may be appropriate.
(e) If the Trustee has instituted or has been directed to institute
any judicial proceeding in a court to enforce the rights of the
Certificateholders under the Certificates, and the Trustee has been advised by
counsel that in connection with such proceeding it is necessary or appropriate
for the Trustee to obtain possession of all or any portion of the Certificates
evidenced by Book-Entry Certificates, the Trustee may in its sole discretion
determine that such Certificates shall no longer be represented by such
Book-Entry Certificates. In such event, the Certificate Registrar will
execute, the Authenticating Agent will authenticate and the Certificate
Registrar will deliver, in exchange for such Book-Entry Certificates,
Definitive Certificates in a Denomination equal to the aggregate Denomination
of such Book-Entry Certificates to the party so requesting such Definitive
Certificates. In such event, the Trustee shall notify the affected Certificate
Owners and make appropriate arrangements for the effectuation of the purpose
of this clause.
(f) Upon acceptance for exchange or transfer of a beneficial
interest in a Book-Entry Certificate for a Definitive Certificate, as provided
herein, the Certificate Registrar shall endorse on a schedule affixed to the
related Book-Entry Certificate (or on a continuation of such schedule affixed
to such Book-Entry Certificate and made a part thereof) an appropriate
notation evidencing the date of such exchange or transfer and a decrease in
the Denomination of such Book-Entry Certificate equal to the Denomination of
such Definitive Certificate issued in exchange therefor or upon transfer
thereof.
(g) If a Holder of a Definitive Certificate wishes at any time to
transfer such Certificate to a Person who wishes to take delivery thereof in
the form of a beneficial interest in the Book-Entry Certificate, such transfer
may be effected only in accordance with Depository Rules and this Section
5.03(g). Upon receipt by the Certificate Registrar at the Registrar Office of
(i) the Definitive Certificate to be transferred with an assignment and
transfer pursuant to Section 5.02(a), (ii) written instructions given in
accordance with Depository Rules directing the Certificate Registrar to credit
or cause to be credited to another account a beneficial interest in the
related Book-Entry Certificate, in an amount equal to the Denomination of the
Definitive Certificate to be so transferred, (iii) a written order given in
accordance with the Depository Rules containing information regarding the
account to be credited with such beneficial interests (iv) if the affected
Certificate is a Non-Registered Certificate, a QIB Investment Representation
Letter (or, if the affected Certificate is a Class F or Class G Certificate, a
Regulation S Investment Representation Letter, the Certificate Registrar shall
cancel such Definitive Certificate, execute and deliver a new Definitive
Certificate for the Denomination of the Definitive Certificate not so
transferred, registered in the name of the Holder or the Holder's transferee
(as instructed by the Holder), and the Certificate Registrar shall instruct
the Depository or the custodian holding such Book-Entry Certificate on behalf
of the Depository to increase the Denomination of the related Book-Entry
Certificate by the Denomination of the Definitive Certificate to be so
transferred, and to credit or cause to be credited to the account of the
Person specified in such instructions a corresponding Denomination of such
Book-Entry Certificate.
SECTION 5.04. Mutilated, Destroyed, Lost or Stolen Certificates.
If (i) any mutilated Certificate is surrendered to the Certificate
Registrar, or the Certificate Registrar receives evidence to its satisfaction
of the destruction, loss or theft of any Certificate and (ii) there is
delivered to the Trustee and the Certificate Registrar such security or
indemnity as may be required by them to save each of them harmless, then, in
the absence of actual notice to the Trustee or the Certificate Registrar that
such Certificate has been acquired by a bona fide purchaser, the Certificate
Registrar shall execute, and the Authenticating Agent shall authenticate and
deliver, in exchange for or in lieu of any such mutilated, destroyed, lost or
stolen Certificate, a new Certificate of the same Class and of like Percentage
Interest. Upon the issuance of any new Certificate under this Section, the
Trustee and the Certificate Registrar may require the payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed
in relation thereto and any other expenses (including the fees and expenses of
the Trustee and the Certificate Registrar) connected therewith. Any
replacement Certificate issued pursuant to this Section shall constitute
complete and indefeasible evidence of ownership in the Trust Fund, as if
originally issued, whether or not the lost, stolen or destroyed Certificate
shall be found at any time.
SECTION 5.05. Persons Deemed Owners.
Prior to due presentation of a Certificate for registration of
transfer, the Depositor, the Servicer, the Special Servicer, the Trustee, the
Certificate Registrar and any agents of any of them may treat the person in
whose name such Certificate is registered as the owner of such Certificate for
the purpose of receiving distributions pursuant to Section 4.01 and for all
other purposes whatsoever, except as and to the extent provided in the
definition of "Certificateholder," and none of the Depositor, the Servicer,
the Special Servicer, the Trustee, the Certificate Registrar and any agent of
any of them shall be affected by notice to the contrary except as provided in
Section 5.02(d).
[End of Article V]
<PAGE>
ARTICLE VI
THE DEPOSITOR, THE
SERVICER AND THE SPECIAL SERVICER
SECTION 6.01. Liability of the Depositor, the Servicer and the
Special Servicer.
The Depositor, the Servicer and the Special Servicer shall be liable
in accordance herewith only to the extent of the respective obligations
specifically imposed upon and undertaken by the Depositor, the Servicer and
the Special Servicer herein.
SECTION 6.02. Merger, Consolidation or Conversion of the Depositor,
the Servicer or the Special Servicer.
(a) Subject to subsection (b) below, the Depositor, the Servicer and
the Special Servicer each will keep in full effect its existence, rights and
franchises as a corporation under the laws of the jurisdiction of its
incorporation or organization, and each will obtain and preserve its
qualification to do business as a foreign corporation in each jurisdiction in
which such qualification is or shall be necessary to protect the validity and
enforceability of this Agreement, the Certificates or any of the Loans and to
perform its respective duties under this Agreement.
(b) The Depositor, the Servicer and the Special Servicer each may be
merged or consolidated with or into any Person, or transfer all or
substantially all of its assets to any Person, in which case any Person
resulting from any merger or consolidation to which the Depositor, the
Servicer or the Special Servicer shall be a party, or any Person succeeding to
the business of the Depositor, the Servicer or the Special Servicer, shall be
the successor of the Depositor, the Servicer and the Special Servicer, as the
case may be, hereunder, without the execution or filing of any paper (other
than an assumption agreement wherein the successor shall agree to perform the
obligations of and serve as the Depositor, the Servicer or the Special
Servicer, as the case may be, in accordance with the terms of this Agreement)
or any further act on the part of any of the parties hereto, anything herein
to the contrary notwithstanding; provided, however, that such merger,
consolidation or succession will not or has not resulted in a withdrawal,
downgrading or qualification of the then current ratings of the Classes of
Certificates that have been so rated (as evidenced by a letter to such effect
from each Rating Agency).
SECTION 6.03. Limitation on Liability of the Depositor, the
Servicer, the Special Servicer and Others.
(a) None of the Depositor, the Trustee (whether acting in such
capacity or as the Authenticating Agent or the Certificate Registrar), the
Servicer, the Special Servicer nor any of the Affiliates, directors, members,
managers, officers, employees or agents of any of them shall be under any
liability to the Trust Fund or the Certificateholders for any action taken or
for refraining from the taking of any action in good faith pursuant to this
Agreement, or for errors in judgment; provided, however that this provision
shall not protect the Depositor, the Trustee, the Servicer, the Special
Servicer or any such Person against any breach of warranties or
representations made herein or any liability which would otherwise be imposed
by reason of willful misfeasance, bad faith or negligence in the performance
of duties or by reason of grossly negligent disregard of obligations and
duties hereunder. The Depositor, the Servicer, the Special Servicer, the
Trustee and any director, officer, employee or agent of the Depositor, the
Servicer or the Special Servicer may rely in good faith on any document of any
kind which, prima facie, is properly executed and submitted by any Person
respecting any matters arising hereunder.
The Depositor, the Servicer, the Special Servicer, the Trustee
(whether acting in such capacity or as the Authenticating Agent or the
Certificate Registrar, the Directing Certificateholder and any Affiliate,
director, member, manager, officer, employee or agent of any of the foregoing
shall be indemnified and held harmless by the Trust Fund against any loss,
liability or expense incurred in connection with any legal action relating to
this Agreement, the Loans or the Certificates, other than any loss, liability
or expense: (i) specifically required to be borne thereby pursuant to the
terms hereof; (ii) incurred in connection with any breach of a representation,
warranty or covenant made by it herein; (iii) incurred by reason of bad faith,
willful misconduct or negligence in the performance of its obligations or
duties hereunder, or by reason of grossly negligent disregard of such
obligations or duties or (iv) in the case of the Depositor and any of its
directors, officers, employees and agents, incurred in connection with any
violation by any of them of any state or federal securities law.
(b) None of the Depositor, the Trustee (whether acting in such
capacity or as the Authenticating Agent or the Certificate Registrar), the
Servicer, the Special Servicer or the Directing Certificateholder shall be
under any obligation to appear in, prosecute or defend any legal or
administrative action, proceeding, hearing or examination that is not
incidental to its respective duties under this Agreement and which in its
opinion may involve it in any expense or liability; provided, however, that
the Depositor, the Servicer, the Special Servicer, the Trustee or the
Directing Certificateholder may in its discretion undertake any such action,
proceeding, hearing or examination that it may deem necessary or desirable in
respect to this Agreement and the rights and duties of the parties hereto and
the interests of the Certificateholders hereunder. In such event, the legal
expenses and costs of such action, proceeding, hearing or examination and any
liability resulting therefrom shall be expenses, costs and liabilities of the
Trust Fund, and the Depositor, the Servicer, the Special Servicer, the Trustee
and the Directing Certificateholder shall be entitled to be reimbursed
therefor out of amounts attributable to the Loans on deposit in the
Certificate Account as provided by Section 3.05(a).
(c) Each of the Servicer and the Special Servicer agrees to
indemnify the Depositor, the Trustee (whether acting in such capacity or as
the Authenticating Agent or Certificate Registrar) and the Trust Fund and each
other and any Affiliate, director, officer, employee or agent thereof, and
hold them harmless, from and against any and all claims, losses, penalties,
fines, forfeitures, reasonable legal fees and related out-of-pocket costs,
judgments, and any other out-of-pocket costs, liabilities, fees and expenses
that any of them may sustain arising from or as a result of any willful
misfeasance, bad faith or negligence of the Servicer or the Special Servicer,
as the case may be, in the performance of its obligations and duties under
this Agreement or by reason of grossly negligent disregard by the Servicer or
the Special Servicer, as the case may be, of its duties and obligations
hereunder or by reason of breach of any representations or warranties made
herein.
The Trustee, the Servicer, the Special Servicer or the Depositor, as
the case may be, shall immediately notify the Servicer or the Special
Servicer, as applicable, if a claim is made by a third party with respect to
this Agreement or the Loans entitling it to indemnification hereunder,
whereupon the Servicer or the Special Servicer, as the case may be, shall
assume the defense of such claim 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 Servicer or the Special Servicer, as the case may
be, shall not affect any rights any of the foregoing Persons may have to
indemnification under this Agreement or otherwise, unless the Servicer's, or
the Special Servicer's, as the case may be, 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 Servicer, the Trustee and the Special Servicer.
The Depositor agrees to indemnify the Servicer and any Affiliate,
director, officer, employee or agent thereof, and hold them harmless, from and
against any and all claims, losses, penalties, fines, forfeitures, reasonable
legal fees and related out-of-pocket costs, judgments, and any other
out-of-pocket costs, liabilities, fees and expenses that any of them may
sustain arising from or as a result of any breach or failure in the
performance of the Servicer's obligations and duties under this Agreement
arising from or as a result of the inaccuracy of the Loan information provided
by the Depositor to the Servicer via electronic mail. The Servicer shall
immediately notify the Depositor if a claim is made by a third party with
respect to this Agreement or the Loans entitling it to indemnification
hereunder, whereupon the Depositor shall assume the defense of such claim 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 any of the foregoing Persons may have to
indemnification under this Agreement or otherwise, unless the Depositor's
defense of such claim is materially prejudiced thereby. The indemnification
provided herein shall survive the termination of this Agreement.
SECTION 6.04. Depositor, Servicer and Special Servicer Not to
Resign.
Subject to the provisions of Section 6.02, none of the Depositor,
the Servicer and the Special Servicer shall resign from their respective
obligations and duties hereby imposed on each of them except upon (a) a
determination that such party's duties hereunder are no longer permissible
under applicable law or (b) in the case of the Servicer or Special Servicer,
upon the appointment of, and the acceptance of such appointment by, a
successor Servicer or Special Servicer, as applicable and receipt by the
Trustee of written confirmation from each applicable Rating Agency that such
resignation and appointment will not cause such Rating Agency to downgrade,
withdraw or qualify any of then current ratings assigned by such Rating Agency
to any Class of Certificates. Any such determination permitting the
resignation of the Depositor, the Servicer or the Special Servicer pursuant to
above clause (a) above shall be evidenced by an Opinion of Counsel (the cost
of which, together with any other expenses of such resignation, shall be at
the expense of the resigning party) to such effect delivered to the Trustee.
No such resignation by the Servicer or the Special Servicer shall become
effective until the Trustee or a successor Servicer shall have assumed the
Servicer's or Special Servicer's, as applicable, responsibilities and
obligations in accordance with Section 7.02.
SECTION 6.05. Rights of the Depositor in Respect of the Servicer and
the Special Servicer.
The Depositor may, but is not obligated to, enforce the obligations
of the Servicer and the Special Servicer hereunder and may, but is not
obligated to, perform, or cause a designee to perform, any defaulted
obligation of the Servicer and the Special Servicer hereunder or exercise the
rights of the Servicer or Special Servicer, as applicable, hereunder;
provided, however, that the Servicer and the Special Servicer shall not be
relieved of any of their respective obligations hereunder by virtue of such
performance by the Depositor or its designee. The Depositor shall not have any
responsibility or liability for any action or failure to act by the Servicer
or the Special Servicer and is not obligated to supervise the performance of
the Servicer or the Special Servicer under this Agreement or otherwise.
[End of Article VI]
<PAGE>
ARTICLE VII
DEFAULT
SECTION 7.01. Events of Default; Servicer and Special Servicer
Termination.
(a) "Event of Default," wherever used herein, means any one of the
following events:
(i) any failure by the Servicer to make (x) any remittance
(including a P&I Advance) required to be made by the Servicer to the
Certificate Account, Servicing Accounts Construction Loan Servicing
Account, Excess Interest Distribution Account, Interest Reserve Account
or either Distribution Account by 4:00 p.m. New York City time on the
Servicer Remittance Date or (y) any Servicing Advance or Yield Protection
Payment Advance when required to be made pursuant to this Agreement; or
(ii) any failure by the Special Servicer to deposit into, or to
remit to the Servicer for deposit into, or the Servicer to make a
required deposit into the Certificate Account or the REO Account, or to
deposit into, or to remit to the Trustee for deposit into, the Lower-Tier
Distribution Account any amount required to be so deposited or remitted
by the Servicer or the Special Servicer, as the case may be, pursuant to,
and at the time specified by, the terms of this Agreement; or
(iii) any failure on the part of the Servicer or the Special
Servicer duly to observe or perform in any material respect any other of
the covenants or agreements on the part of the Servicer or the Special
Servicer contained in this Agreement which continues unremedied for a
period of 30 days (15 days in the case of a failure to pay the premium
for any Insurance Policy required to be maintained hereunder) after the
date on which written notice of such failure, requiring the same to be
remedied, shall have been given to the Servicer or the Special Servicer,
as the case may be, by any other party hereto, or to the Servicer, the
Special Servicer, the Depositor and the Trustee by the Holders of
Certificates of any Class evidencing, as to such Class, Percentage
Interests aggregating not less than 25%; provided, however, that with
respect to any such failure which is not curable within such 30-day
period or 15-day period, as applicable, the Servicer or the Special
Servicer, as the case may be, shall have an additional cure period of
thirty (30) days to effect such cure so long as the Servicer or the
Special Servicer, as the case may be, has commenced to cure such failure
within such initial 30-day period or 15-day period, as applicable, and
has diligently pursued, and is continuing to pursue, a full cure; or
(iv) any breach on the part of the Servicer or the Special Servicer
of any representation or warranty contained in Section 3.23 or Section
3.24, as applicable (except as set forth in clause (ix) hereto), which
materially and adversely affects the interests of any Class of
Certificateholders and which continues unremedied for a period of 30 days
after the date on which notice of such breach, requiring the same to be
remedied, shall have been given to the Servicer or the Special Servicer,
as the case may be, by the Depositor or the Trustee, or to the Servicer,
the Special Servicer, the Depositor and the Trustee by the Holders of
Certificates of any Class evidencing, as to such Class, Percentage
Interests aggregating not less than 25%; 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,
marshaling of assets and liabilities or similar proceedings, or for the
winding-up or liquidation of its affairs, shall have been entered against
the Servicer or the Special Servicer and such decree or order shall have
remained in force undischarged or unstayed for a period of 60 days; or
(vi) the Servicer or the Special Servicer shall consent to the
appointment of a conservator, receiver, liquidator, trustee or similar
official in any bankruptcy, insolvency, readjustment of debt, marshaling
of assets and liabilities or similar proceedings of or relating to the
Servicer or the Special Servicer or of or relating to all or
substantially all of its property; or
(vii) the Servicer or the Special Servicer shall admit in writing
its inability to pay its debts generally as they become due, file a
petition to take advantage of any applicable bankruptcy, insolvency or
reorganization statute, make an assignment for the benefit of its
creditors, voluntarily suspend payment of its obligations or take any
corporate action in furtherance of the foregoing; or
(viii) the Trustee shall have received and forwarded to the Servicer
and the Special Servicer, as applicable, written notice from any Rating
Agency that the continuation of the Servicer or Special Servicer in such
capacity, has resulted, or would result, in and of itself, in a
downgrade, qualification or withdrawal of any rating then-assigned to any
Class of Certificates by such Rating Agency if the Servicer or Special
Servicer, as the case may be, is not replaced, and the Trustee shall not
have received subsequent notice from such Rating Agency (within 30 days)
indicating that no such downgrade, qualification or withdrawal will
result (or that, if it has resulted, it will be rescinded); or
(ix) the Servicer or the Special Servicer shall have failed to
satisfy the covenant set forth in Section 3.23(b) or Section 3.24(b), as
applicable, by the date set forth therein.
(b) If any Event of Default with respect to the Servicer or the
Special Servicer (in either case, for purposes of this Section 7.01(b), the
"Defaulting Party") shall occur and be continuing, then, and in each and every
such case, so long as such Event of Default shall not have been remedied, the
Trustee may, and at the written direction of the Holders of Certificates
entitled to at least 51% of the Voting Rights, shall, terminate, by notice in
writing to the Defaulting Party, with a copy of such notice to the Depositor,
all of the rights and obligations of the Defaulting Party under this Agreement
and in and to the Loans and the proceeds thereof; provided, however, that the
Defaulting Party shall be entitled to the payment of accrued and unpaid
compensation and reimbursement through the date of such termination as
provided for under this Agreement for services rendered and expenses incurred.
From and after the receipt by the Defaulting Party of such written
notice, all authority and power of the Defaulting Party under this Agreement,
whether with respect to the Certificates (other than as a Holder of any
Certificate) or the Loans or otherwise, shall pass to and be vested in the
Trustee pursuant to and under this Section, and, without limitation, the
Trustee is hereby authorized and empowered to execute and deliver, on behalf
of and at the expense of the Defaulting Party, as attorney-in-fact or
otherwise, any and all documents and other instruments, and to do or
accomplish all other acts or things necessary or appropriate to effect the
purposes of such notice of termination, whether to complete the transfer and
endorsement or assignment of the Loans and related documents, or otherwise.
The Servicer and Special Servicer each agree that if it is terminated
pursuant to this Section 7.01(b), it shall promptly (and in any event no later
than 20 Business Days after its receipt of the notice of termination) provide
the Trustee with all documents and records requested by it to enable the
Trustee to assume the Servicer's or the Special Servicer's, as the case may
be, functions hereunder, and shall cooperate with the Trustee in effecting the
termination of the Servicer's or the Special Servicer's, as the case may be,
responsibilities and rights hereunder, including, without limitation, the
transfer within five Business Days to the Trustee for administration by it of
all cash amounts which shall at the time be or should have been credited by
the Servicer to the Certificate Account, the Construction Loan Servicing
Account or any Servicing Account (if it is the Defaulting Party) or by the
Special Servicer to the REO Account (if it is the Defaulting Party) or
thereafter be received with respect to the Loans or any REO Property
(provided, however, that the Servicer and the Special Servicer each shall, if
terminated pursuant to this Section 7.01(b), continue to be entitled to
receive all amounts accrued or owing to it under this Agreement on or prior to
the date of such termination, whether in respect of Advances (in the case of
the Servicer) or otherwise, and it and its directors, officers, employees and
agents shall continue to be entitled to the benefits of Section 6.03
notwithstanding any such termination). The Servicer further agrees that if it
is terminated pursuant to this Section 7.01(b) or if it resigns under the
circumstances permitted under Section 6.04, or if for any other reason it is
no longer the Servicer, it shall promptly (and in any event no later than five
Business Days after its receipt of the notice of termination) (i) assign its
rights under the United Artists Loan Swap Agreement to the Trustee, as
successor Servicer, or (ii) at its own expense, cause a substitute
counterparty meeting the requirements of Section 3.23(c) to enter into a swap
agreement with the Trustee, as successor Servicer, on terms substantially
equivalent to those set forth in the United Artists Loan Swap Agreement. The
Servicer hereby pledges its rights under the United Artists Loan Swap
Agreement to the Trustee, as successor Servicer, to secure its promise to make
the assignment described in the immediately preceding sentence.
(c) The Holder or Holders of more than 50% of the aggregate
Certificate Balance of the Controlling Class shall be entitled to terminate
the rights and obligations of the Special Servicer under this Agreement, with
or without cause, upon 10 Business Days notice to the Special Servicer, the
Servicer and the Trustee, and to appoint a successor Special Servicer;
provided, however, that (i) such successor will meet the requirements set
forth in Section 7.02 and (ii) as evidenced in writing by each of the Rating
Agencies, the proposed successor of such Special Servicer will not, in and of
itself, result in a downgrading, withdrawal or qualification of the then
current ratings provided by the Rating Agencies in respect to any Class of
then outstanding Certificates that is rated. No penalty or fee shall be
payable to the Special Servicer with respect to any termination pursuant to
this Section 7.01(c).
(d) The Servicer and Special Servicer shall, from time to time, take
all such actions as are required by them in order to maintain their respective
status as an approved servicer and special servicer, as applicable and as
pertains to this transaction, with each of the Rating Agencies.
SECTION 7.02. Trustee to Act; Appointment of Successor.
On and after the time the Servicer or the Special Servicer, as the case
may be, either resigns pursuant to the first sentence of Section 6.04 or
receives a notice of termination for cause pursuant to Section 7.01(a), and
provided that no acceptable successor has been appointed, the Trustee shall be
and become the successor to the Servicer or Special Servicer, as the case may
be, in all respects in its capacity as Servicer or Special Servicer under this
Agreement and the transactions set forth or provided for herein and shall be
subject to all the responsibilities, duties, liabilities and limitations on
liability relating thereto and that arise thereafter placed on or for the
benefit of the Servicer or Special Servicer by the terms and provisions
hereof; provided, however, that any failure to perform such duties or
responsibilities caused by the terminated party's failure under Section 7.01
to provide information or moneys required hereunder shall not be considered a
default by such successor hereunder.
The appointment of a successor Servicer shall not affect any liability of
the predecessor Servicer which may have arisen prior to its termination as
Servicer, and the appointment of a successor Special Servicer shall not affect
any liability of the predecessor Special Servicer which may have arisen prior
to its termination as Special Servicer. The Trustee in its capacity as
successor to the Servicer or the Special Servicer, as the case may be, shall
not be liable for any of the representations and warranties of the Servicer or
the Special Servicer, respectively, herein or in any related document or
agreement, for any acts or omissions of the predecessor Servicer or Special
Servicer or for any losses incurred by the Servicer pursuant to Section 3.06
hereunder, nor shall the Trustee be required to purchase any Loan hereunder.
As compensation therefor, the Trustee as successor Servicer shall be
entitled to the Servicing Fees and all fees relating to the Loans which the
Servicer would have been entitled to if the Servicer had continued to act
hereunder, including but not limited to any income or other benefit from any
Permitted Investment pursuant to Section 3.06, and as successor to the Special
Servicer shall be entitled to the Special Servicing Fees to which the Special
Servicer would have been entitled if the Special Servicer had continued to act
hereunder. Should the Trustee succeed to the capacity of the Servicer or the
Special Servicer, the Trustee shall be afforded the same standard of care and
liability as the Servicer or the Special Servicer, as applicable, hereunder
notwithstanding anything in Section 8.01 to the contrary, but only with respect
to actions taken by it in its role as successor Servicer or successor Special
Servicer, as the case may be, and not with respect to its role as Trustee
hereunder.
Notwithstanding the above, the Trustee may, if it shall be unwilling to
act as successor to the Servicer or Special Servicer, or shall, if it is
unable to so act, or if the Trustee is not approved as a servicer or special
servicer, as applicable, by each Rating Agency, or if the Holders of
Certificates entitled to at least 51% of the Voting Rights so request in
writing to the Trustee, promptly appoint, or petition a court of competent
jurisdiction to appoint, any established mortgage loan servicing institution
which meets the criteria set forth herein, as the successor to the Servicer or
the Special Servicer, as applicable, hereunder in the assumption of all or any
part of the responsibilities, duties or liabilities of the Servicer or Special
Servicer hereunder. No appointment of a successor to the Servicer or the
Special Servicer under this Section 7.02 shall be effective (i) until each of
the Rating Agencies shall have confirmed in writing that its then-current
rating (if any) of each Class of Certificates will not be qualified,
downgraded or withdrawn by reason thereof and (ii) until the assumption in
writing by the successor to the Servicer or the Special Servicer of all its
responsibilities, duties and liabilities hereunder that arise thereafter.
Pending appointment of a successor to the Servicer or the Special Servicer
hereunder, unless the Trustee shall be prohibited by law from so acting, the
Trustee shall act in such capacity as herein above provided.
In connection with such appointment and assumption of a successor to the
Servicer or Special Servicer as described herein, the Trustee may make such
arrangements for the compensation of such successor out of payments on Loans
as it and such successor shall agree; provided, however, that no such
compensation with respect to a successor Servicer or successor Special
Servicer, as the case may be, shall be in excess of that permitted the
terminated Servicer or Special Servicer, as the case may be, hereunder. The
Trustee, the Servicer or the Special Servicer (whichever is not the terminated
party) and such successor shall take such action, consistent with this
Agreement, as shall be necessary to effectuate any such succession. Any costs
and expenses associated with the transfer of the servicing function (other
than with respect to a termination without cause) under this Agreement shall
be borne by the predecessor Servicer or Special Servicer.
SECTION 7.03. Notification to Certificateholders.
(a) Upon any resignation of the Servicer or the Special Servicer
pursuant to Section 6.04, any termination of the Servicer or the Special
Servicer pursuant to Section 7.01 or any appointment of a successor to the
Servicer or the Special Servicer pursuant to Section 7.02, the Trustee shall
give prompt written notice thereof to Certificateholders at their respective
addresses appearing in the Certificate Register.
(b) Not later than the later of (i) 60 days after the occurrence of
any event which constitutes or, with notice or lapse of time or both, would
constitute an Event of Default and (ii) 5 days after the Trustee would be
deemed to have notice of the occurrence of such an event in accordance with
Section 8.02(vii), the Trustee shall transmit by mail to the Depositor and all
Certificateholders notice of such occurrence, unless such default shall have
been cured.
SECTION 7.04. Waiver of Events of Default.
The Holders of Certificates representing at least 66 2/3% of the
Voting Rights allocated to each Class of Certificates affected by any Event of
Default hereunder may waive such Event of Default within 20 days of the
receipt of notice from the Trustee of the occurrence of such Event of Default;
provided, however, that an Event of Default under clause (i) of Section
7.01(a) may not be waived. Upon any such waiver of an Event of Default, such
Event of Default shall cease to exist and shall be deemed to have been
remedied for every purpose hereunder. No such waiver shall extend to any
subsequent or other Event of Default or impair any right consequent thereon
except to the extent expressly so waived. Notwithstanding any other provisions
of this Agreement, for purposes of waiving any Event of Default pursuant to
this Section 7.04, Certificates registered in the name of the Depositor or any
Affiliate of the Depositor shall be entitled to the same Voting Rights with
respect to the matters described above as they would if any other Person held
such Certificates.
SECTION 7.05. Trustee Advances.
If the Servicer fails to fulfill its obligations hereunder to make
any Advances, the Trustee shall perform such obligations (x) within one
Business Day of such failure by the Servicer with respect to Servicing
Advances to the extent a Responsible Officer of the Trustee has been notified
in writing of such failure with respect to such Servicing Advances and (y) by
1:00 p.m., New York City time, on the related Distribution Date with respect
to P&I Advances. With respect to any such Advance made by the Trustee, the
Trustee shall succeed to all of the Servicer's rights with respect to Advances
hereunder, including, without limitation, the Servicer's rights of
reimbursement and interest on each Advance at the Reimbursement Rate, and
rights to determine that a proposed Advance is a Nonrecoverable P&I Advance or
Servicing Advance, as the case may be, (without regard to any impairment of
any such rights of reimbursement caused by such Servicer's default in its
obligations hereunder); provided, however, that if Advances made by both the
Trustee and the Servicer shall at any time be outstanding, or any interest on
any Advance shall be accrued and unpaid, all amounts available to repay such
Advances and the interest thereon hereunder shall be applied entirely to the
Advances outstanding to the Trustee, until such Advances shall have been
repaid in full, together with all interest accrued thereon, prior to
reimbursement of the Servicer for such Advances. The Trustee shall be entitled
to conclusively rely on any notice given with respect to a Nonrecoverable
Advance hereunder.
[End of Article VII]
<PAGE>
ARTICLE VIII
CONCERNING THE TRUSTEE
SECTION 8.01. Duties of Trustee.
(a) The Trustee, prior to the occurrence of an Event of Default and
after the curing or waiving of all Events of Default which may have occurred,
undertakes to perform such duties and only such duties as are specifically set
forth in this Agreement. If an Event of Default occurs and is continuing, then
(subject to Section 8.02(vii) below) the Trustee shall exercise such of the
rights and powers vested in it by this Agreement, and use the same degree of
care and skill in their exercise as a prudent man would exercise or use under
the circumstances in the conduct of his own affairs. Any permissive right of
the Trustee contained in this Agreement shall not be construed as a duty.
(b) 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 (other than the Mortgage Files,
the review of which is specifically governed by the terms of Article II),
shall examine them to determine whether they conform to the requirements of
this Agreement. If any such instrument is found not to conform to the
requirements of this Agreement in a material manner, the Trustee shall make a
request to the responsible party to have the instrument corrected. The Trustee
shall not be responsible for the accuracy or content of any resolution,
certificate, statement, opinion, report, document, order or other instrument
furnished by the Depositor, the Servicer or the Special Servicer, and accepted
by the Trustee in good faith, pursuant to this Agreement.
(c) No provision of this Agreement shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act or its own willful misconduct; provided, however, that:
(i) Prior to the occurrence of an Event of Default, and after the
curing of all such Events of Default which may have occurred, the duties
and obligations of the Trustee shall be determined solely by the express
provisions of this Agreement, the Trustee shall not be liable except for
the performance of such duties and obligations as are specifically set
forth in this Agreement, no implied covenants or obligations shall be
read into this Agreement against the Trustee and, in the absence of bad
faith on the part of the Trustee, the Trustee may conclusively rely, as
to the truth of the statements and the correctness of the opinions
expressed therein, upon any certificates or opinions furnished to the
Trustee and conforming to the requirements of this Agreement;
(ii) The Trustee shall not be personally liable for an error of
judgment made in good faith by a Responsible Officer or Responsible
Officers of the Trustee, unless it shall be proved that the Trustee was
negligent in ascertaining the pertinent facts; and
(iii) The Trustee shall not be personally liable with respect to any
action taken, suffered or omitted to be taken by it in good faith in
accordance with the direction of Holders of Certificates entitled to at
least 25% of the Voting Rights relating to the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred upon the Trustee, under this
Agreement (unless a higher percentage of Voting Rights is required for
such action).
(iv) Subject to the other provisions of this Agreement and without
limiting the generality of this Section 8.01, the Trustee shall have no
duty except in the capacity as successor Servicer or successor Special
Servicer (A) to see to any recording, filing, or depositing of this
Agreement or any agreement referred to herein or any financing statement
or continuation statement evidencing a security interest, or to see to
the maintenance of any such recording or filing or depositing or to any
re-recording, refilling or redepositing of any thereof, (B) to see to any
insurance, and (C) to confirm or verify the contents of any reports or
certificates of the Servicer or Special Servicer delivered to the Trustee
pursuant to this Agreement reasonably believed by the Trustee to be
genuine and to have been signed or presented by the proper party or
parties.
(d) [RESERVED]
SECTION 8.02. Certain Matters Affecting the Trustee.
Except as otherwise provided in Section 8.01:
(i) The Trustee may rely upon and shall be protected in acting or
refraining from acting upon any resolution, 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 by it to be genuine and to
have been signed or presented by the proper party or parties;
(ii) The Trustee may consult with counsel and the written advice of
such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken or suffered
or omitted by it hereunder in good faith and in accordance therewith;
(iii) The Trustee shall be under no obligation to exercise any of the
trusts or powers vested in it by this Agreement or to make any
investigation of matters arising hereunder or to institute, conduct or
defend any litigation hereunder or in relation hereto at the request,
order or direction of any of the Certificateholders, pursuant to the
provisions of this Agreement, unless, in the Trustee's reasonable
opinion, such Certificateholders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses and
liabilities which may be incurred therein or thereby; the Trustee shall
not be required to expend or risk its own 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;
nothing contained herein shall, however, relieve the Trustee of the
obligation, upon the occurrence of an Event of Default which has not been
cured, to exercise such of the rights and powers vested in it by this
Agreement, and to use the same degree of care and skill in their exercise
as a prudent man would exercise or use under the circumstances in the
conduct of his own affairs;
(iv) The Trustee shall not be personally liable for any action
reasonably taken, suffered or omitted by it in good faith and believed by
it to be authorized or within the discretion or rights or powers
conferred upon it by this Agreement;
(v) Prior to the occurrence of an Event of Default hereunder and
after the curing of all Events of Default which may have occurred, the
Trustee shall not be bound to make any investigation into the facts or
matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, consent, order, approval, bond or other
paper or document, unless requested in writing to do so by Holders of
Certificates entitled to at least 50% of the Voting Rights; provided,
however that if the payment within a reasonable time to the Trustee of
the costs, expenses or liabilities likely to be incurred by it in the
making of such investigation is, in the opinion of the Trustee, not
reasonably assured to the Trustee by the security afforded to it by the
terms of this Agreement, the Trustee may require reasonable indemnity
against such expense or liability as a condition to taking any such
action. The reasonable expense of every such reasonable examination shall
be paid by the Servicer or, if paid by the Trustee, shall be repaid by
the Servicer upon demand;
(vi) The Trustee may execute any of the trusts or powers hereunder
or perform any duties hereunder either directly or by or through agents
or attorneys; provided, however, that the appointment of such agents or
attorneys shall not relieve the Trustee of its duties or obligations
hereunder;
(vii) For all purposes under this Agreement, the Trustee shall
not be required to take any action with respect to, or be deemed to have
notice or knowledge of any default or Event of Default unless a
Responsible Officer of the Trustee has actual knowledge thereof or shall
have received written notice thereof. In the absence of receipt of such
notice and such actual knowledge otherwise obtained, the Trustee may
conclusively assume that there is no default or Event of Default;
(viii) The Trustee shall not be responsible for any act or omission
of the Servicer, the Special Servicer or the Directing Certificateholder
(unless the Trustee is acting as Servicer, Special Servicer or the
Directing Certificateholder, as the case may be) or of the Depositor; and
(ix) The Trustee shall not be required to give any bond or surety in
respect of the execution of the Trust Fund created hereby or the power
granted hereunder.
SECTION 8.03. Trustee Not Liable for Validity or Sufficiency of
Certificates or Loans.
The recitals contained herein and in the Certificates, other than
the acknowledgments of the Trustee in Sections 2.02 and 2.04 and the
signature, if any, of the Trustee set forth on any outstanding Certificate,
shall be taken as the statements of the Depositor, the Servicer or the Special
Servicer, as the case may be, and the Trustee assumes no responsibility for
their correctness. The Trustee does not make any representations as to the
validity or sufficiency of this Agreement or of any Certificate (other than as
to the signature, if any, of the Trustee set forth thereon) or of any Loan or
related document. The Trustee shall not be accountable for the use or
application by the Depositor of any of the Certificates issued to it or of the
proceeds of such Certificates, or for the use or application of any funds paid
to the Depositor in respect of the assignment of the Loans to the Trust Fund,
or any funds deposited in or withdrawn from the Certificate Account or any
other account by or on behalf of the Depositor, the Servicer, the Special
Servicer or the Trustee. The Trustee shall not be responsible for the accuracy
or content of any resolution, certificate, statement, opinion, report,
document, order or other instrument furnished by the Depositor, the Servicer
or the Special Servicer, and accepted by the Trustee, in good faith, pursuant
to this Agreement.
SECTION 8.04. Trustee May Own Certificates.
The Trustee in its individual capacity and not as Trustee, may
become the owner or pledgee of Certificates, and may deal with the Depositor,
the Servicer, the Special Servicer, the Initial Purchaser and the Underwriter
in banking transactions, with the same rights it would have if it were not
Trustee.
SECTION 8.05. Fees and Expenses of Trustee; Indemnification of
Trustee.
(a) As compensation for the performance of its duties, the Trustee
shall be paid the Trustee Fee, equal to one month's interest at the Trustee
Fee Rate on the Stated Principal Balance of each Loan or REO Loan, which shall
cover recurring and otherwise reasonably anticipated expenses of the Trustee.
The Trustee Fee (which shall not be limited to any provision of law in regard
to the compensation of a trustee of an express trust) shall constitute the
Trustee's sole form of compensation 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 of the Trustee hereunder. In addition, the
Trustee shall be entitled to reimbursement from the Depositor for certain
expenses thereof pursuant to a separate agreement between the Trustee and the
Depositor.
(b) The Trustee and any Affiliate, director, officer, employee or
agent of the Trustee shall be indemnified and held harmless by the Trust Fund
(to the extent of amounts on deposit in the Lower-Tier Distribution Account
from time to time) against any loss, liability or expense (including, without
limitation, costs and expenses of litigation, and of investigation, counsel
fees, damages, judgments and amounts paid in settlement, and expenses incurred
in becoming successor servicer, to the extent not otherwise paid hereunder)
arising out of, or incurred in connection with, this Agreement, the Loans, the
Certificates or any act or omission of the Trustee relating to the exercise
and performance of any of the powers and duties of the Trustee hereunder;
provided, however, that neither the Trustee nor any of the other above
specified Persons shall be entitled to indemnification pursuant to this
Section 8.05(b) for (i) allocable overhead, (ii) routine expenses or
disbursements incurred or made by or on behalf of the Trustee in the normal
course of the Trustee's performing its duties in accordance with any of the
provisions hereof, which are not "unanticipated expenses of the REMIC" within
the meaning of Treasury Regulations Section 1.860G1(b)(3)(ii), (iii) any
expense or liability specifically required to be borne thereby pursuant to the
terms hereof or (iv) any loss, liability or expense incurred by reason of
willful misfeasance, bad faith or negligence in the performance of the
Trustee's obligations and duties hereunder, or by reason of grossly negligent
disregard of such obligations or duties, or as may arise from a breach of any
representation, warranty or covenant of the Trustee made herein. The
provisions of this Section 8.05(b) shall survive any resignation or removal of
the Trustee and appointment of a successor thereto.
SECTION 8.06. Eligibility Requirements for Trustee.
The Trustee hereunder shall at all times be, and will be required to
resign if it fails to be, (i) a corporation, national bank or national banking
association, organized and doing business under the laws of any state or the
United States of America, authorized under such laws to exercise corporate
trust powers and to accept the trust conferred under this Agreement, having a
combined capital and surplus of at least $50,000,000 and subject to
supervision or examination by federal or state authority and shall not be an
Affiliate of the Servicer or the Special Servicer (except during any period
when the Trustee is acting as, or has become successor to, the Servicer or the
Special Servicer, as the case may be, pursuant to Section 7.02), (ii) an
institution insured by the Federal Deposit Insurance Corporation and (iii) an
institution whose long-term senior unsecured debt is rated "AA-" by Fitch and
"Aa3" by Moody's (or such entity as would not, as evidenced in writing by such
Rating Agency, result in the qualification, downgrading or withdrawal of any
of then current ratings then assigned thereby to the Certificates).
If such corporation, national bank or national banking association
publishes reports of condition at least annually, pursuant to law or to the
requirements of the aforesaid supervising or examining authority, then for the
purposes of this Section the combined capital and surplus of such corporation,
national bank or national banking association shall be deemed to be its
combined capital and surplus as set forth in its most recent report of
condition so published. In the event the place of business from which the
Trustee administers any REMIC created hereunder is in a state or local
jurisdiction that imposes a tax on the Trust Fund on the net income of a REMIC
(other than a tax corresponding to a tax imposed under the REMIC Provisions),
the Trustee shall elect either to (i) resign immediately in the manner and
with the effect specified in Section 8.07, (ii) pay such tax at no expense to
the Trust Fund or (iii) administer each REMIC created hereunder from a state
and local jurisdiction that does not impose such a tax.
SECTION 8.07. Resignation and Removal of the Trustee.
(a) The Trustee may at any time resign and be discharged from the
trusts hereby created by giving written notice thereof to the Depositor, the
Servicer, the Special Servicer and to all Certificateholders. Upon receiving
such notice of resignation, the Depositor shall promptly appoint a successor
trustee acceptable to the Servicer by written instrument, in duplicate, which
instrument shall be delivered to the resigning Trustee and to the successor
trustee. A copy of such instrument shall be delivered to the Servicer, the
Special Servicer and the Certificateholders by the Depositor. If no successor
trustee shall have been so appointed and have accepted appointment within 30
days after the giving of such notice of resignation, the resigning Trustee may
petition any court of competent jurisdiction for the appointment of a
successor trustee. The resigning Trustee shall be responsible for the payment
of all reasonable expenses incurred in connection with such resignation and
discharge and the appointment of a successor trustee.
(b) If at any time the Trustee shall cease to be eligible in
accordance with the provisions of Section 8.06 and shall fail to resign after
written request therefor by the Depositor or the Servicer, or if at any time
the Trustee shall become incapable of acting, or shall be adjudged bankrupt or
insolvent, or a receiver of the Trustee or of its property shall be appointed,
or any public officer shall take charge or control of the Trustee or of its
property or affairs for the purpose of rehabilitation, conservation or
liquidation, then the Depositor may remove the Trustee and appoint a successor
trustee acceptable to the Servicer by written instrument, in duplicate, which
instrument shall be delivered to the Trustee so removed and to the successor
trustee. A copy of such instrument shall be delivered to the Servicer, the
Special Servicer and the Certificateholders by the Depositor.
(c) The Holders of Certificates entitled to at least 51% of the
Voting Rights may at any time remove the Trustee and appoint a successor
trustee by written instrument or instruments, in triplicate, signed by such
Holders or their attorneys-in-fact duly authorized, one complete set of which
instruments shall be delivered to the Servicer, one complete set to the
Trustee so removed and one complete set to the successor so appointed. A copy
of such instrument shall be delivered to the Depositor, the Special Servicer
and the remaining Certificateholders by the Servicer.
Any resignation or removal of the Trustee and appointment of a
successor Trustee pursuant to any of the provisions of this Section 8.07 shall
not become effective until acceptance of appointment by the successor Trustee
as provided in Section 8.08.
Upon any succession of the Trustee under this Agreement, the
predecessor Trustee shall be entitled to the payment of accrued and unpaid
compensation and reimbursement as provided for under this Agreement for
services rendered and expenses incurred. No Trustee shall be personally liable
for any action or omission of any successor Trustee.
SECTION 8.08. Successor Trustee.
(a) Any successor Trustee appointed as provided in Section 8.07
shall execute, acknowledge and deliver to the Depositor, the Servicer, the
Special Servicer and to its predecessor Trustee, an instrument accepting such
appointment hereunder, and thereupon the resignation or removal of the
predecessor Trustee, shall become effective and such successor Trustee,
without any further act, deed or conveyance, shall become fully vested with
all the rights, powers, duties and obligations of its predecessor hereunder,
with the like effect as if originally named as Trustee herein. The predecessor
Trustee shall deliver to the successor trustee all Mortgage Files and related
documents and statements held by it hereunder (other than any Mortgage Files
at the time held on its behalf by a Custodian, which Custodian shall become
the agent of the successor Trustee), and the Depositor, the Servicer, the
Special Servicer and the predecessor Trustee shall execute and deliver such
instruments and do such other things as may reasonably be required to more
fully and certainly vest and confirm in the successor Trustee all such rights,
powers, duties and obligations, and to enable the successor Trustee to perform
its obligations hereunder.
(b) No successor Trustee shall accept appointment as provided in
this Section 8.08 unless at the time of such acceptance such successor trustee
shall be eligible under the provisions of Section 8.06.
(c) Upon acceptance of appointment by a successor Trustee as
provided in this Section 8.08, the Servicer shall mail notice of the
succession of such Trustee hereunder to the Depositor and the
Certificateholders. If the Servicer fails to mail such notice within 10 days
after acceptance of appointment by the successor Trustee, such successor
Trustee shall cause such notice to be mailed at the expense of the Servicer.
SECTION 8.09. 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 the Trustee shall be a party, or any Person succeeding
to all or substantially all of the corporate trust business of the Trustee,
shall be the successor of the Trustee, hereunder; provided, that, in the case of
the Trustee, such successor Person shall be eligible under the provisions of
Section 8.06, without the execution or filing of any paper or any further act on
the part of any of the parties hereto, anything herein to the contrary
notwithstanding. The Trustee will provide notice of such event to the Servicer,
the Special Servicer, the Depositor and the Rating Agencies.
SECTION 8.10. Appointment of Co-Trustee or Separate Trustee.
(a) Notwithstanding any other provisions hereof, at any time, for
the purpose of meeting any legal requirements of any jurisdiction in which any
part of the Trust Fund or property securing the same may at the time be
located, the Servicer and the Trustee acting jointly shall have the power and
shall execute and deliver all instruments to appoint one or more Persons
approved by the Trustee to act as co-trustee or co-trustees, jointly with the
Trustee, or separate trustee or separate trustees, of all or any part of the
Trust Fund, and to vest in such Person or Persons, in such capacity, such
title to the Trust Fund, or any part thereof, and, subject to the other
provisions of this Section 8.10, such powers, duties, obligations, rights and
trusts as the Servicer and the Trustee may consider necessary or desirable. If
the Servicer shall not have joined in such appointment within 15 days after
the receipt by it of a request to do so, or in case an Event of Default shall
have occurred and be continuing, the Trustee alone shall have the power to
make such appointment. No co-trustee or separate trustee hereunder shall be
required to meet the terms of eligibility as a successor trustee under Section
8.06 hereunder and no notice to Holders of Certificates of the appointment of
co-trustee(s) or separate trustee(s) shall be required under Section 8.08
hereof.
(b) In the case of any appointment of a co-trustee or separate
trustee pursuant to this Section 8.10, all rights, powers, duties and
obligations conferred or imposed upon the Trustee shall be conferred or
imposed upon and exercised or performed by the Trustee and such separate
trustee or co-trustee jointly, except to the extent that under any law of any
jurisdiction in which any particular act or acts are to be performed (whether
as Trustee hereunder or as successor to the Servicer or the Special Servicer
hereunder), the Trustee shall be incompetent or unqualified to perform such
act or acts, in which event such rights, powers, duties and obligations
(including the holding of title to the Trust Fund or any portion thereof in
any such jurisdiction) shall be exercised and performed by such separate
trustee or co-trustee at the direction of the Trustee.
(c) Any notice, request or other writing given to the Trustee shall
be deemed to have been given to each of the then-separate trustees and
co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this Agreement
and the conditions of this Article VIII. Each separate trustee and co-trustee,
upon its acceptance of the trusts conferred, shall be vested with the estates
or property specified in its instrument of appointment, either jointly with
the Trustee or separately, as may be provided therein, subject to all the
provisions of this Agreement, specifically including every provision of this
Agreement relating to the conduct of, affecting the liability of, or affording
protection to, the Trustee. Every such instrument shall be filed with the
Trustee.
(d) Any separate trustee or co-trustee may, at any time, constitute
the Trustee, its agent or attorney-in-fact, with full power and authority, to
the extent not prohibited by law, to do any lawful act under or in respect of
this Agreement on its behalf and in its name. If any separate trustee or
co-trustee shall die, become incapable of acting, resign or be removed, all of
its estates, properties, rights, remedies and trusts shall vest in and be
exercised by the Trustee, to the extent permitted by law, without the
appointment of a new or successor trustee.
(e) The appointment of a co-trustee or separate trustee under this
Section 8.10 shall not relieve the Trustee of its duties and responsibilities
hereunder.
SECTION 8.11. Appointment of Custodians.
The Trustee may, with the consent of the Servicer, appoint one or
more Custodians to hold all or a portion of the Mortgage Files as agent for
the Trustee. Each Custodian shall be a depository institution subject to
supervision by federal or state authority, shall have combined capital and
surplus of at least $15,000,000 and shall be qualified to do business in the
jurisdiction in which it holds any Mortgage File and shall not be the
Depositor or any Affiliate of the Depositor. Each Custodian shall be subject
to the same obligations and standard of care as would be imposed on the
Trustee hereunder in connection with the retention of Mortgage Files directly
by the Trustee. The appointment of one or more Custodians shall not relieve
the Trustee from any of its obligations hereunder, and the Trustee shall
remain responsible for all acts and omissions of any Custodian. Any Custodian
appointed hereunder must maintain a fidelity bond and errors and omissions
policy in an amount customary for Custodians which serve in such capacity in
commercial mortgage loan securitization transactions.
SECTION 8.12. Access to Certain Information.
(a) On or prior to the date of the first sale of any Non-Registered
Certificate to an Independent third party, the Depositor shall provide to the
Trustee a copy of any private placement memorandum or other disclosure
document used by the Depositor or its Affiliate in connection with the offer
and sale of the Class of Certificates to which such Non-Registered Certificate
relates. In addition, if any such private placement memorandum or disclosure
document is revised, amended or supplemented any time following the delivery
thereof to the Trustee, the Depositor promptly shall inform the Trustee of
such event and shall deliver to the Trustee a copy of the private placement
memorandum or disclosure document, as revised, amended or supplemented.
The Trustee shall maintain at its offices primarily responsible for
administering the Trust Fund and shall, upon reasonable advance written
notice, make available during normal business hours for review by any Holder
of a Certificate, the Depositor, the Servicer, the Special Servicer, the
Directing Certificateholder, any Rating Agency or any other Person to whom the
Trustee believes such disclosure is appropriate, originals or copies of the
following items to the extent such documents have been delivered to the
Trustee: (i) in the case of a Holder or prospective transferee of a
Non-Registered Certificate, any private placement memorandum or other
disclosure document relating to the Class of Certificates to which such
Non-Registered Certificate belongs, in the form most recently provided to the
Trustee and (ii) in all cases, (a) this Agreement and any amendments hereto
entered into pursuant to Section 10.01, (b) all statements required to be
delivered to Certificateholders of the relevant Class pursuant to Section 4.02
since the Closing Date, (c) all Officer's Certificates delivered to the
Trustee since the Closing Date pursuant to Section 3.13, (d) all accountants'
reports delivered to the Trustee since the Closing Date pursuant to Section
3.14, (e) any inspection report prepared by the Servicer, Sub-Servicer or
Special Servicer, as applicable, and delivered to the Trustee and Servicer in
respect of each Mortgaged Property pursuant to Section 3.12(a), (f) as to each
Loan pursuant to which the related Mortgagor is required to deliver such items
or the Special Servicer has otherwise acquired such items, the most recent
annual operating statement and rent roll of the related Mortgaged Property and
financial statements of the related Mortgagor and any other reports of the
Mortgagor collected by the Servicer, Sub-Servicer or Special Servicer, as
applicable, and delivered to the Trustee pursuant to Section 3.12(b), together
with the accompanying written reports to be prepared by the Special Servicer
and delivered to the Trustee pursuant to Section 3.12(b), (g) any and all
notices, reports and Environmental Assessments delivered to the Trustee with
respect to any Mortgaged Property securing a Defaulted Loan as to which the
environmental testing contemplated by Section 3.09(c) revealed that either of
the conditions set forth in clauses (i) and (ii) of the first sentence thereof
was not satisfied (but only for so long as such Mortgaged Property or the
related Loan are part of the Trust Fund), (h) any and all modifications,
waivers and amendments of the terms of a Loan entered into by the Servicer or
the Special Servicer and delivered to the Trustee pursuant to Section 3.20
(but only for so long as the affected Loan is part of the Trust Fund), (i) any
and all Officer's Certificates delivered to the Trustee to support the
Servicer's determination that any P&I Advance or Servicing Advance was or, if
made, would be a Nonrecoverable P&I Advance or Nonrecoverable Servicing
Advance, as the case may be, (j) any and all of the Loan documents contained
in the Mortgage File, (k) any and all Appraisals obtained pursuant to the
definition of "Appraisal Reduction" herein, (l) information regarding the
occurrence of Servicing Transfer Events as to the Loans and (m) any and all
Sub-Servicing Agreements and any amendments thereto and modifications thereof.
Copies of any and all of the foregoing items will be available from
the Trustee upon written request; provided, however, that the Trustee shall be
permitted to require payment of a sum sufficient to cover the reasonable costs
and expenses of providing such copies, except in the case of copies provided
to the Rating Agencies, which shall be free of charge. In addition, without
limiting the generality of the foregoing, the Holder of any Class I or Class J
Certificate may upon written request from the Trustee obtain a copy of any
factual report (other than the Asset Status Report) delivered to the Rating
Agencies under this Agreement.
(b) Notwithstanding anything to the contrary herein, in addition to
the reports and information made available and distributed pursuant to the
terms of this Agreement (including the information set forth in Section
8.12(a)), the Servicer and the Trustee shall, in accordance with such
reasonable rules and procedures as each may adopt (which may include the
requirement that an agreement that provides that such information shall be
used solely for purposes of evaluating the investment characteristics of the
Certificates be executed), also provide the reports available to
Certificateholders pursuant to Section 4.02, as well as certain additional
information received by the Servicer or the Trustee, as the case may be, to
any Certificateholder, the Underwriter, the Initial Purchaser, any Certificate
Owner or any prospective investor identified as such by a Certificate Owner or
the Underwriter, that requests such reports or information; provided that the
Servicer or the Trustee, as the case may be, shall be permitted to require
payment of a sum sufficient to cover the reasonable costs and expenses of
providing copies of such reports or information.
(c) With respect to any information furnished by the Trustee or the
Servicer pursuant to this Section 8.12, the Trustee or Servicer, as the case
may be, shall be entitled to indicate the source of such information and the
Trustee or Servicer, as applicable, may affix thereto any disclaimer it deems
appropriate in its discretion. The Trustee or the Servicer, as applicable,
shall notify Certificateholders of the availability of any such information in
any manner as it, in its sole discretion, may determine. In connection with
providing access to or copies of the items described in the preceding
paragraph, the Trustee or the Servicer, as the case may be, may require (a) in
the case of Certificate Owners, a confirmation executed by the requesting
Person substantially in form and substance reasonably acceptable to the
Servicer or Trustee, as applicable, generally to the effect that such Person
is a beneficial holder of Certificates or an investment advisor representing
such Person and is requesting the information solely for use in evaluating
such Person's investment in the Certificates and will otherwise keep such
information confidential and (b) in the case of a prospective purchaser or an
investment advisor representing such Person, confirmation executed by the
requesting Person in form and substance reasonably acceptable to the Trustee
or the Servicer, as the case may be, generally to the effect that such Person
is a prospective purchaser of a Certificate or an interest therein or an
investment advisor representing such Person, and is requesting the information
solely for use in evaluating a possible investment in Certificates. Neither
the Servicer nor the Trustee shall be liable for the dissemination of
information in accordance with this Agreement.
SECTION 8.13. Representations, Warranties and Covenants of the
Trustee.
(a) The Trustee hereby represents and warrants to the Depositor, the
Servicer and the Special Servicer and for the benefit of the
Certificateholders, as of the Closing Date, that:
(i) The Trustee is a banking corporation, duly organized, validly
existing and in good standing under the laws of New York;
(ii) The execution and delivery of this Agreement by the Trustee, and
the performance and compliance with the terms of this Agreement by the
Trustee, will not violate the Trustee's charter and by-laws or constitute
a default (or an event which, with notice or lapse of time, or both,
would constitute a default) under, or result in the breach of, any
material agreement or other instrument to which it is a party or which is
applicable to it or any of its assets;
(iii) The Trustee has the full power and authority to enter into and
consummate all transactions contemplated by this Agreement, has duly
authorized the execution, delivery and performance of this Agreement, and
has duly executed and delivered this Agreement;
(iv) This Agreement, assuming due authorization, execution and
delivery by each of the other parties hereto, constitutes a valid, legal
and binding obligation of the Trustee, enforceable against the Trustee in
accordance with the terms hereof, subject to (a) applicable bankruptcy,
insolvency, reorganization, moratorium and other laws affecting the
enforcement of creditors' rights generally and the rights of creditors of
banks specifically and (b) general principles of equity, regardless of
whether such enforcement is considered in a proceeding in equity or at
law;
(v) The Trustee is not in violation of, and its execution and
delivery of this Agreement and its performance and compliance with the
terms of this Agreement will not constitute a violation of, any law, any
order or decree of any court or arbiter, or any order, regulation or
demand of any federal, state or local governmental or regulatory
authority, which violation, in the Trustee's good faith and reasonable
judgment, is likely to affect materially and adversely either the ability
of the Trustee to perform its obligations under this Agreement or the
financial condition of the Trustee;
(vi) No litigation is pending or, to the best of the Trustee's
knowledge, threatened against the Trustee which would prohibit the
Trustee from entering into this Agreement or, in the Trustee's good faith
and reasonable judgment, is likely to materially and adversely affect
either the ability of the Trustee to perform its obligations under this
Agreement or the financial condition of the Trustee; and
(vii) No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by the Trustee, or compliance by the Trustee with, this
Agreement or the consummation of the transactions contemplated by this
Agreement, except for any consent, approval, authorization or order which
has not been obtained or cannot be obtained prior to the actual
performance by the Trustee of its obligations under this Agreement, and
which, if not obtained would not have a materially adverse effect on the
ability of the Trustee to perform its obligations hereunder.
(b) The Trustee covenants that by August 31, 1999, any custom-made
software or hardware designed or purchased or licensed by the Trustee and used
by it in the course of the operation or management of, or the compiling,
reporting or generation of data required by this Agreement will not contain
any deficiency (x) in the ability of such software or hardware to identify
correctly or perform calculations or other processing with respect to dates
after August 31, 1999 or (y) that would cause such software or hardware to be
fit no longer for the purpose for which it was intended by reason of changing
the date from 1999 to 2000. The Holders of Certificates entitled to at least
51% of the Voting Rights may terminate the Trustee by notice in writing to the
Depositor and the Trustee, if the Trustee is in breach of the covenant set
forth in this Section 8.13(b). Such termination shall constitute the sole
remedy available for a breach of the covenant set forth in this Section
8.13(b). The foregoing matters extend and relate only to the internal
functioning of the software and hardware maintained by the Trustee, and the
Trustee shall not be responsible for the accuracy or integrity of any data or
calculations provided to the Trustee by any third party.
[End of Article VIII]
<PAGE>
ARTICLE IX
TERMINATION; PURCHASE OF ARD LOANS
SECTION 9.01. Termination Upon Repurchase or Liquidation of All
Loans.
Subject to Section 9.02, the Trust Fund and the respective obligations
and responsibilities under this Agreement of the Depositor, the Servicer, the
Special Servicer and the Trustee (other than the obligations of the Trustee to
provide for and make payments to Certificateholders as hereafter set forth)
shall terminate upon payment (or provision for payment) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required hereunder to be so paid on the Distribution Date following the
earliest to occur of (i) the purchase by the CSFB Mortgage Loan Seller, the
Special Servicer, the Holders of the Controlling Class or the Servicer of all
the Loans and each REO Property remaining in the Trust Fund at a price equal
to (a) the sum of (1) the aggregate Purchase Price of all the Loans (exclusive
of REO Loans) included in the Trust Fund and (2) the Appraised Value of each
REO Property, if any, included in the Trust Fund (such Appraisals in this
subclause (2) to be conducted by an Appraiser selected and mutually agreed
upon by the Servicer and the Trustee, and approved by more than 50% of the
Voting Rights of the Classes of Certificates then outstanding (other than the
Controlling Class if the Controlling Class is exercising such option unless
the Controlling Class is the only Class of Certificates then outstanding)),
minus (b) solely in the case where the Servicer is effecting such purchase,
the aggregate amount of unreimbursed Advances, together with any interest
accrued and payable to the Servicer in respect of such Advances in accordance
with Sections 3.03(d) and 4.03(d) and any unpaid Servicing Fees, remaining
outstanding (which items shall be deemed to have been paid or reimbursed to
the Servicer in connection with such purchase), (ii) the Distribution Date in
November 2041 and (iii) the final payment or other liquidation (or any advance
with respect thereto) of the last Loan or REO Property remaining in the Trust
Fund; provided, however, that in no event shall the trust created hereby
continue beyond the earlier of (i) the Rated Final Distribution Date and (ii)
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's, living on the date hereof.
The CSFB Mortgage Loan Seller may, at its option, elect to purchase all
of the Loans and each REO Property remaining in the Trust Fund as contemplated
by clause (i) of the preceding paragraph by giving written notice to the
Trustee and the other parties hereto within 60 days of the first Distribution
Date on which the aggregate Stated Principal Balances of the Loans and any REO
Loans remaining in the Trust Fund is less than 2% of the aggregate Cut-off
Date Principal Balance of the Loans set forth in the Preliminary Statement. If
the CSFB Mortgage Loan Seller does not exercise such option within 60 days
after it becomes exercisable by the CSFB Mortgage Loan Seller, the Special
Servicer may notify the CSFB Mortgage Loan Seller and the Trustee of its
intention to exercise such option, and if the CSFB Mortgage Loan Seller fails
to exercise such option within ten Business Days thereafter, the Special
Servicer shall be entitled to exercise such option. If the Special Servicer
does not exercise such option within 60 days after it becomes exercisable by
the Special Servicer, the Holders of a majority of the Percentage Interests in
the Controlling Class may notify the CSFB Mortgage Loan Seller, the Special
Servicer and the Trustee of their intention to exercise such option and if
neither the CSFB Mortgage Loan Seller nor the Special Servicer exercises such
option within ten Business Days thereafter, such Holders of the Controlling
Class shall be entitled to exercise such option. If the Holders of a majority
of the Percentage Interests of the Controlling Class do not exercise such
option within 60 days after it becomes exercisable by them, the Servicer may
notify the CSFB Mortgage Loan Seller, the Special Servicer, the Holders of the
Controlling Class and the Trustee of the Servicer's intention to exercise such
option, and if neither the CSFB Mortgage Loan Seller, nor the Special Servicer
nor the Holders of a majority of the Percentage Interests in the Controlling
Class exercise such option within ten Business Days thereafter, the Servicer
will be entitled to exercise such option. Any purchaser pursuant to Section
9.01(a) of a Loan serviced by a Seller-Servicer or GE Capital Loan Services,
Inc., shall be required to enter into a servicing agreement with such
Seller-Servicer, as applicable, or GE Capital Loan Services, Inc., in the form
of the related "Prior Servicing Agreement" (as defined in the Seller-Servicer
Agreement or the GECLS Sub-Servicing Agreement) or shall be required to pay
such Seller-Servicer or GE Capital Loan Services, Inc., as applicable, the
termination fee that would be payable thereunder.
If the CSFB Mortgage Loan Seller, the Special Servicer, the Holders of
the Controlling Class or the Servicer purchases all of the Loans and each REO
Property remaining in the Trust Fund in accordance with the preceding
paragraph, the CSFB Mortgage Loan Seller, the Special Servicer, the Holders of
the Controlling Class or the Servicer, as applicable, shall deposit in the
Lower-Tier Distribution Account not later than the P&I Advance Date relating
to the Distribution Date on which the final distribution on the Certificates
is to occur, an amount in immediately available funds equal to the
above-described purchase price (exclusive of any portion thereof payable to
any Person other than the Certificateholders pursuant to Section 3.05(a),
which portion shall be deposited in the Certificate Account). In addition, the
Servicer shall transfer to the Lower-Tier Distribution Account all amounts
required to be transferred thereto on such P&I Advance Date from the
Certificate Account pursuant to the first paragraph of Section 3.04(b),
together with any other amounts on deposit in the Certificate Account that
would otherwise be held for future distribution. Upon confirmation that such
final deposits have been made, the Trustee shall release or cause to be
released to the CSFB Mortgage Loan Seller, the Special Servicer, the Holders
of the Controlling Class or the Servicer, as applicable, the Mortgage Files
for the remaining Loans and shall execute all assignments, endorsements and
other instruments furnished to it by the CSFB Mortgage Loan Seller, the
Special Servicer, the Holders of the Controlling Class or the Servicer, as
applicable, as shall be necessary to effectuate transfer of the Loans and REO
Properties remaining in the Trust Fund and its rights under the related
Mortgage Loan Purchase Agreement.
For purposes of this Section 9.01, the Directing Certificateholder, with
the consent of the Holders of the Controlling Class, shall act on behalf of
the Holders of the Controlling Class in purchasing the assets of the Trust
Fund and terminating the Trust.
Notice of any termination pursuant to this Section 9.01 shall be given
promptly by the Trustee by letter to the Certificateholders and each Rating
Agency and, if not previously notified pursuant to this Section 9.01, to the
other parties hereto mailed (a) in the event such notice is given in
connection with the purchase of all of the Loans and each REO Property
remaining in the Trust Fund, not earlier than the 15th day and not later than
the 25th day of the month next preceding the month of the final distribution
on the Certificates, or (b) otherwise during the month of such final
distribution on or before the P&I Advance Determination Date in such month, in
each case specifying (i) the Distribution Date upon which the Trust Fund will
terminate and final payment of the Certificates will be made, (ii) the amount
of any such final payment and (iii) that the Record Date otherwise applicable
to such Distribution Date is not applicable, payments being made only upon
presentation and surrender of the Certificates at the offices of the
Certificate Registrar or such other location therein designated.
After transferring the Lower-Tier Distribution Amount and the amount of
any Prepayment Premiums and Yield Maintenance Charges distributable pursuant
to Section 4.01(d) to the Upper-Tier Distribution Account pursuant to Section
3.04(b) and upon presentation and surrender of the Certificates by the
Certificateholders on the final Distribution Date, the Trustee shall
distribute to each Certificateholder so presenting and surrendering its
Certificates such Certificateholder's Percentage Interest of that portion of
the amounts then on deposit in the Upper-Tier Distribution Account that are
allocable to payments on the Class of Certificates so presented and
surrendered. Amounts transferred from the Lower-Tier Distribution Account to
the Intermediate-Tier Distribution Account and from the Intermediate-Tier
Distribution Account to the Upper-Tier Distribution Account as of the final
Distribution Date shall be allocated for the purposes, in the amounts and in
accordance with the priority set forth in Sections 4.01(a) and 4.01(e) and
shall be distributed in termination and liquidation of the Uncertificated
Lower-Tier and Intermediate-Tier Interests and the Class LR Certificates in
accordance with Sections 4.01(b) and (d). Any funds not distributed on such
Distribution Date shall be set aside and held uninvested in trust for the
benefit of Certificateholders not presenting and surrendering their
Certificates in the aforesaid manner and shall be disposed of in accordance
with this Section 9.01 and Section 4.01(h).
Anything in this Section 9.01 to the contrary notwithstanding, the
Holders of the Class V Certificates shall receive that portion of the proceeds
of a sale of the assets of the Trust Fund allocable to accrued and unpaid
Excess Interest.
SECTION 9.02. Additional Termination Requirements.
If the CSFB Mortgage Loan Seller, the Special Servicer, the Holders of
the Controlling Class or the Servicer purchases all of the Loans and each REO
Property remaining in the Trust Fund as provided in Section 9.01, the Trust
Fund shall be terminated in accordance with the following additional
requirements, which are intended to meet the definition of a "qualified
liquidation" in Section 860F(a)(4) of the Code:
(i) the Servicer shall specify the first day in the 90-day
liquidation period in a statement attached to each of the Upper-Tier
REMIC's, the Intermediate-Tier REMIC's and the Lower-Tier REMIC's final
Tax Return pursuant to Treasury regulation Section 1.860F1 and shall
satisfy all requirements of a qualified liquidation under Section 860F of
the Code and any regulations thereunder;
(ii) during such 90-day liquidation period and at or prior to the
time of the making of the final payment on the Certificates, the Trustee
shall sell all of the assets of each REMIC to the CSFB Mortgage Loan
Seller, the Special Servicer, the Holders of the Controlling Class or the
Servicer, as the case may be, for cash; and
(iii) immediately following the making of the final payment on the
Uncertificated Intermediate-Tier and Lower-Tier Interests and the
Certificates, the Trustee shall distribute or credit, or cause to be
distributed or credited, to the Holders of the Class LR Certificates (in
the case of the Intermediate-Tier and Lower-Tier REMIC) and the Class R
Certificates (in the case of the Upper-Tier REMIC) all cash on hand
(other than cash retained to meet claims), in the Trust Fund and each of
the Lower-Tier REMIC, Intermediate-Tier REMIC and the Upper-Tier REMIC
shall terminate at that time.
SECTION 9.03. Purchase of ARD Loans and Town & Country Loan.
The Holder of a 100% Percentage Interest in the Class V Certificates
may purchase any ARD Loan for up to two months after its Anticipated Repayment
Date, or the Town & Country Loan for up to two months after its Maturity Date,
at a price equal to the sum of the following:
(i) 100% of the outstanding principal balance of such Loan on such
Anticipated Repayment Date or Maturity Date, as applicable (less any P&I
Advances previously made on account of principal);
(ii) all unpaid interest accrued on such principal balance of such
Loan at the Mortgage Rate thereof, to the last day of the Interest
Accrual Period preceding such Anticipated Repayment Date or Maturity
Date, as applicable (less any P&I Advances previously made on account of
interest);
(iii) the aggregate amount of all unreimbursed Advances with respect
to such Loan, with interest thereon at the Advance Rate, and unpaid
Servicing Fees, Special Servicing Fees, Trustee Fees and Trust Fund
expenses; and
(iv) the amount of any expenses incurred by the Trust Fund in
connection with such purchase;
provided, however, that any such purchase may be consummated only if the
applicable Holder, at its expense, provides the Trustee with an Opinion of
Counsel to the effect that such purchase (or such right to purchase) would not
cause (a) any REMIC created hereunder to fail to qualify as a REMIC under the
Code at any time that any Certificate is outstanding and (b) would not cause
the arrangement between the REMIC and the Class V Certificateholders to be
other than a grantor trust for federal income tax purposes, and (i) an Opinion
of Counsel to the effect that such purchase would not result in a gain which
would be subject to the tax on net income derived from prohibited transactions
imposed by Code Section 860F(a)(1) or otherwise result in the imposition of
any other tax on any REMIC created hereunder under the REMIC provisions of the
Code or (ii) an accountant's certification to the effect that such purchase
would not result in the realization of any net income to any REMIC created
hereunder.
The proceeds of any such purchase hereunder shall be deposited in the
Certificate Account and disbursed as provided herein.
[End of Article IX]
<PAGE>
ARTICLE X
MISCELLANEOUS PROVISIONS
SECTION 10.01. Amendment.
(a) This Agreement may be amended from time to time by the parties
hereto, without the consent of any of the Certificateholders:
(i) to cure any ambiguity;
(ii) to correct or supplement any provisions herein or therein,
which may be inconsistent with any other provisions herein or therein or
to correct any error;
(iii) to modify, eliminate or add to any of its provisions to such
extent as shall be necessary to maintain the qualification of any REMIC
created hereunder as a REMIC at all times that any Certificate (other
than the Class V Certificates) is outstanding or to avoid or minimize the
risk of the imposition of any tax on the Trust Fund or any REMIC created
hereunder pursuant to the Code that would be a claim against the Trust
Fund or any REMIC created hereunder, provided that the Trustee has
received an Opinion of Counsel to the effect that (a) such action is
necessary or desirable to maintain such qualification or to avoid or
minimize the risk of the imposition of any such tax, (b) such action will
not adversely affect in any material respect the interests of any
Certificateholder, and (c) such change shall not result in the
withdrawal, downgrade or qualification of the then-current rating
assigned to any Class of Certificates, as evidenced by a letter from each
Rating Agency to such effect;
(iv) to change the timing and/or nature of deposits into the
Certificate Account, the Distribution Accounts or REO Account or to
change the name in which the Certificate Account is maintained, provided
that (a) the P&I Advance Date shall in no event be later than the related
Distribution Date, (b) such change shall not, as evidenced by an Opinion
of Counsel addressed to the Trustee, adversely affect in any material
respect the interests of any Certificateholder and (c) such change shall
not result in the withdrawal, downgrade or qualification of the
then-current rating assigned to any Class of Certificates, as evidenced
by a letter from each Rating Agency to such effect;
(v) to modify, eliminate or add to the provisions of Section
5.02(d) or any other provision hereof restricting transfer of the
Residual Certificates by virtue of their being the REMIC "residual
interests," provided that (a) such change shall not result in the
withdrawal, downgrade or qualification of the then-current rating
assigned to any Class of Certificates, as evidenced by a letter from each
Rating Agency to such effect, and (b) such change shall not, as evidenced
by an Opinion o Counsel addressed to the Trustee, cause the Trust Fund,
any REMIC created hereunder or any of the Certificateholders (other than
the Transferor) to be subject to a federal tax caused by a Transfer to a
Person that is a Disqualified Organization or a Non-U.S. Person or a
Transfer from a Person other than a U.S. Person;
(vi) to make any other provisions with respect to matters or
questions arising under this Agreement which shall not be materially
inconsistent with the provisions of this Agreement, provided that such
action shall not, as evidenced by an Opinion of Counsel addressed to the
Trustee, adversely affect in any material respect the interests of any
Certificateholder not consenting thereto; and
(vii) to amend or supplement any provision hereof to the extent
necessary to maintain the then current rating or ratings assigned to each
Class of Certificates by each Rating Agency as confirmed in writing.
(b) This Agreement may also be amended from time to time by the
parties hereto with the consent of the Holders of Certificates evidencing in
the aggregate not less than 66 2/3% of the Percentage Interests of each Class
of Certificates affected thereby for the purpose of adding any provisions to
or changing in any manner or eliminating any of the provisions of this
Agreement or of modifying in any manner the rights of the Holders of
Certificates of such Class; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate; or
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment, in
any such case without the consent of the Holders of all Certificates of
such Class then outstanding; or
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of all Certificates of
such Class then outstanding; or
(iv) amend this Section 10.01.
(c) Notwithstanding the foregoing, the Trustee will not be entitled
to consent to any amendment hereto without having first received an Opinion of
Counsel to the effect that such amendment or the exercise of any power granted
to the Servicer, the Depositor, the Special Servicer, the Trustee or any other
specified person in accordance with such amendment will not result in the
imposition of a tax on the Trust Fund, any REMIC created hereunder or cause
any REMIC created hereunder to fail to qualify as a REMIC.
(d) Promptly after the execution of any such amendment, the Trustee
shall furnish a copy of such amendment to each Rating Agency and each
Certificateholder.
(e) It shall not be necessary for the consent of Certificateholders
under this Section 10.01 to approve the particular form of any proposed
amendment, but it shall be sufficient if such consent shall approve the
substance thereof. The manner of obtaining such consents and of evidencing the
authorization of the execution thereof by Certificateholders shall be subject
to such reasonable regulations as the Trustee may prescribe.
(f) The Trustee may, but shall not be obligated to, enter into any
amendment pursuant to this Section that affects its rights, duties and
immunities under this Agreement or otherwise.
(g) The cost of any Opinion of Counsel to be delivered pursuant to
Section 10.01(a), (b) or (c) shall be borne by the Person seeking the related
amendment, except that if the Servicer or the Trustee requests any amendment
of this Agreement in furtherance of the rights and interests of
Certificateholders, the cost of any Opinion of Counsel required in connection
therewith pursuant to Section 10.01(a), (b) or (c) shall be payable out of the
Certificate Account.
SECTION 10.02. Recordation of Agreement; Counterparts.
(a) To the extent permitted by applicable law, this Agreement is
subject to recordation in all appropriate public offices for real property
records in all the counties or other comparable jurisdictions in which any or
all of the properties subject to the Mortgages are situated, and in any other
appropriate public recording office or elsewhere, such recordation to be
effected by the Servicer at the expense of the Depositor on direction by the
Trustee, but only upon direction accompanied by an Opinion of Counsel (the
cost of which shall be paid by the Depositor) to the effect that such
recordation materially and beneficially affects the interests of the
Certificateholders.
(b) For the purpose of facilitating the recordation of this
Agreement as herein provided and for other purposes, this Agreement may be
executed simultaneously in any number of counterparts, each of which
counterparts shall be deemed to be an original, and such counterparts shall
constitute but one and the same instrument.
SECTION 10.03. Limitation on Rights of Certificateholders.
(a) The death or incapacity of any Certificateholder shall not
operate to terminate this Agreement or the Trust Fund, nor entitle such
Certificateholder's legal representatives or heirs to claim an accounting or
to take any action or proceeding in any court for a partition or winding up of
the Trust Fund, nor otherwise affect the rights, obligations and liabilities
of the parties hereto or any of them.
(b) No Certificateholder shall have any right to vote (except as
expressly provided for herein) or in any manner otherwise control the
operation and management of the Trust Fund, or the obligations of the parties
hereto, nor shall anything herein set forth, or contained in the terms of the
Certificates, be construed so as to constitute the Certificateholders from
time to time as partners or members of an association; nor shall any
Certificateholder be under any liability to any third party by reason of any
action taken by the parties to this Agreement pursuant to any provision
hereof.
(c) No Certificateholder shall have any right by virtue of any
provision of this Agreement to institute any suit, action or proceeding in
equity or at law upon or under or with respect to this Agreement or any Loan,
unless, with respect to any suit, action or proceeding upon or under or with
respect to this Agreement, such Holder previously shall have given to the
Trustee a written notice of default hereunder, and of the continuance thereof,
as hereinbefore provided, and unless also (except in the case of a default by
the Trustee) the Holders of Certificates of any Class evidencing not less than
25% of the related Percentage Interests in such Class shall have made written
request upon the Trustee to institute such action, suit or proceeding in its
own name as Trustee hereunder and shall have offered to the Trustee such
reasonable indemnity as it may require against the costs, expenses and
liabilities to be incurred therein or thereby, and the Trustee, for 60 days
after its receipt of such notice, request and offer of indemnity, shall have
neglected or refused to institute any such action, suit or proceeding. The
Trustee shall be under no obligation to exercise any of the trusts or powers
vested in it hereunder or to institute, conduct or defend any litigation
hereunder or in relation hereto at the request, order or direction of any of
the Holders of Certificates unless such Holders have offered to the Trustee
reasonable security against the costs, expenses and liabilities which may be
incurred therein or hereby.
It is understood and intended, and expressly covenanted by each
Certificateholder with every other Certificateholder and the Trustee, that no
one or more Holders of Certificates shall have any right in any manner
whatsoever by virtue of any provision of this Agreement to affect, disturb or
prejudice the rights of the Holders of any other of such Certificates, or to
obtain or seek to obtain priority over or preference to any other such Holder,
which priority or preference is not otherwise provided for herein, or to
enforce any right under this Agreement, except in the manner herein provided
and for the equal, ratable and common benefit of all Certificateholders. For
the protection and enforcement of the provisions of this Section 10.03(c),
each and every Certificateholder and the Trustee shall be entitled to such
relief as can be given either at law or in equity.
SECTION 10.04. Governing Law.
This Agreement and the Certificates shall be construed in accordance
with the internal laws of the State of New York applicable to agreements made
and to be performed in said State, and the obligations, rights and remedies of
the parties hereunder shall be determined in accordance with such laws.
SECTION 10.05. Notices.
Any communications provided for or permitted hereunder shall be in
writing and, unless otherwise expressly provided herein, shall be deemed to
have been duly given if personally delivered at or mailed by registered mail,
postage prepaid (except for notices to the Trustee which shall be deemed to
have been duly given only when received), to: (i) (a) in the case of the
Depositor, Credit Suisse First Boston Mortgage Securities Corp., Eleven
Madison Avenue, New York, New York 10010, Attention: Allan J. Baum, with a
copy to Colleen Graham, Esq., Compliance Department, telecopy number: (212)
325-8162; and (b) in the case of the Underwriter, Credit Suisse First Boston
Corporation, Eleven Madison Avenue, New York, New York 10010, Attention: Allan
I. Baum, with a copy to Colleen Graham, Esq., Compliance Department, telecopy
number (212) 325-8162; (ii) in the case of the Servicer, First Union National
Bank, Charlotte Plaza, 23rd Floor, 201 South College Street, Charlotte, North
Carolina 28288-1075, Attention: Credit Suisse First Boston Mortgage Securities
Corp., Commercial Mortgage Pass-Through Certificates, Series 1998-C2, telecopy
number (704) 383-9356; (iii) in the case of the Special Servicer, Lennar
Partners, Inc., 760 N.W. 107th Avenue, Miami Florida 33172, Attention: Jeffrey
P. Krasnoff, telecopy number (305) 226-7691; (iv) in the case of the Trustee,
The Chase Manhattan Bank, 450 West 33rd Street, 14th Floor, New York, New York
10001, Attention: Structured Finance Services (CMBS), telecopy number (212)
946-8302; (v) in the case of the Rating Agencies, (a) Fitch IBCA, Inc., One
State Street Plaza, New York, New York 10004, Attention: Commercial Mortgage
Monitoring Group, telecopy number: (212) 635-0295; and (b) Moody's Investor
Services, Inc., 99 Church Street, New York, New York 10007, Attention:
Commercial Mortgage Surveillance Group, telecopy number: (212) 553-1350; and
(vi) in the case of either Mortgage Loan Seller, Credit Suisse First Boston
Mortgage Capital L.L.C., 11 Madison Avenue, New York, New York 10010,
Attention: Compliance Department, telecopy number (212) 325-8162; or as to
each such Person such other address as may hereafter be furnished by such
Person to the parties hereto in writing. Any communication required or
permitted to be delivered to a Certificateholder shall be deemed to have been
duly given when mailed first Class, postage prepaid, to the address of such
Holder as shown in the Certificate Register. Any notice so mailed within the
time prescribed in this Agreement shall be conclusively presumed to have been
duly given, whether or not the Certificateholder receives such notice.
SECTION 10.06. Severability of Provisions.
If any one or more of the covenants, agreements, provisions or terms
of this Agreement shall be for any reason whatsoever held invalid, then such
covenants, agreements, provisions or terms shall be deemed severable from the
remaining covenants, agreements, provisions or terms of this Agreement and
shall in no way affect the validity or enforceability of the other provisions
of this Agreement or of the Certificates or the rights of the Holders thereof.
SECTION 10.07. Grant of a Security Interest.
The Depositor intends that the conveyance of the Depositor's right,
title and interest in and to the Loans pursuant to this Agreement shall
constitute a sale and not a pledge of security for a loan. If such conveyance
is deemed to be a pledge of security for a loan, however, the Depositor
intends that the rights and obligations of the parties to such loan shall be
established pursuant to the terms of this Agreement. The Depositor also
intends and agrees that, in such event, (i) the Depositor shall be deemed to
have granted to the Trustee (in such capacity) a first priority security
interest in the Depositor's entire right, title and interest in and to the
assets comprising the Trust Fund, including without limitation, the Loans, all
principal and interest received or receivable with respect to the Loans (other
than principal and interest payments due and payable prior to the Cut-off Date
and Principal Prepayments received prior to the Cut-off Date), all amounts
held from time to time in the Certificate Account, the Distribution Accounts
and, if established, the REO Account, and all reinvestment earnings on such
amounts, and all of the Depositor's right, title and interest in and to the
proceeds of any title, hazard or other Insurance Policies related to such
Loans and (ii) this Agreement shall constitute a security agreement under
applicable law. This Section 10.07 shall constitute notice to the Trustee
pursuant to any of the requirements of the applicable UCC.
SECTION 10.08. Successors and Assigns; Beneficiaries.
The provisions of this Agreement shall be binding upon and inure to
the benefit of the respective successors and assigns of the parties hereto,
and all such provisions shall inure to the benefit of the Certificateholders.
No other person, including, without limitation, any Mortgagor, shall be
entitled to any benefit or equitable right, remedy or claim under this
Agreement.
SECTION 10.09. Article and Section Headings.
The article and section headings herein are for convenience of
reference only, and shall not limit or otherwise affect the meaning hereof.
SECTION 10.10. Notices to Rating Agencies.
(a) The Trustee shall use reasonable efforts promptly to provide
notice to each Rating Agency with respect to each of the following of which a
Responsible Officer of the Trustee has actual knowledge:
(i) any material change or amendment to this Agreement;
(ii) the occurrence of any Event of Default that has not been cured;
(iii) the resignation or termination of the Servicer or the Special
Servicer;
(iv) any change in the location of either of the Distribution
Accounts;
(v) the repurchase of Loans by the CSFB Mortgage Loan Seller
pursuant to Section 7 of the related Mortgage Loan Purchase Agreement;
and
(vi) the final payment to any Class of Certificateholders.
(b) The Servicer shall use reasonable efforts promptly to provide
notice to each Rating Agency with respect to each of the following of which it
has actual knowledge:
(i) the resignation or removal of the Trustee;
(ii) any change in the location of the Certificate Account; and
(iii) any event that would result in the voluntary or involuntary
termination of any insurance of the accounts of the Trustee.
(c) Each of the Servicer and the Special Servicer shall promptly
furnish to each Rating Agency copies of the following:
(i) each of its annual statements as to compliance described in
Section 3.13;
(ii) all reports and other items for Significant Loans delivered by
each of the Servicer and Special Servicer pursuant to Section 3.12;
(iii) each of its annual independent public accountants' servicing
reports described in Section 3.14; and
(iv) each waiver and consent provided pursuant to Section 3.08 for
Significant Loans.
(d) The Trustee shall promptly after each Distribution Date furnish
to each Rating Agency a copy of the related Statement to Certificateholders.
(e) Each Rating Agency shall provide to the Trustee, upon its
request, a listing of the then current ratings on any Certificate then
outstanding.
[End of Article X]
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused their names to be
signed hereto by their respective officers thereunto duly authorized, in each
case as of the day and year first above written.
CREDIT SUISSE FIRST BOSTON MORTGAGE
SECURITIES CORP.
Depositor
By: /s/ Allan Baum
------------------------
Name: Allan Baum
Title: Vice President
FIRST UNION NATIONAL BANK
Servicer
By: /s/ Timothy S. Ryan
---------------------
Name: Timothy S. Ryan
Title: Vice President
LENNAR PARTNERS, INC.
Special Servicer
By: /s/ Jeffrey P. Krasnoff
--------------------
Name: Jeffrey P. Krasnoff
Title: President
THE CHASE MANHATTAN BANK
Trustee
By: /s/ Norma Catone
--------------------
Name: Norma Catone
Title: Vice President
Credit Suisse First Boston Corporation as
Sole Holder of the Private Certificates,
consents to the foregoing amendment
pursuant to Section 10.01(b) of the Pooling
and Servicing Agreement.
CREDIT SUISSE FIRST BOSTON CORPORATION
By: /s/ Allan Baum
Name: Allan Baum
Title: Managing Director
<PAGE>
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the 17th day of December, 1998 before me, a notary public in and
for said State, personally appeared Allan Baum known to me to be a Vice
President of Credit Suisse First Boston Mortgage Securities Corp., and a
Managing Director of Credit Suisse First Boston Corporation, the corporations
that executed the within instrument, and also known to me to be the person who
executed it on behalf of said corporations, and acknowledged to me that such
corporations 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.
/s/ James M. Wulffleff
---------------------------
James M. Wulffleff
<PAGE>
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the 17th day of December, 1998 before me, a notary public in and for
said State, personally appeared Norma Catone known to me to be a Vice
President of The Chase Manhattan Bank, a corporation that executed the within
instrument, and also known to me to be the person who executed it on behalf of
said corporation, and acknowledged to me that such corporation 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.
/s/ James M. Wulffleff
---------------------------
James M. Wulffleff
<PAGE>
STATE OF NORTH CAROLINA )
) ss.:
COUNTY OF MECKLENBURG )
On the 17th day of December, 1998 before me, Robert C. Garrero, Jr.
a notary public in and for said State, personally appeared Timothy S. Ryan
known to me to be a Vice President of First Union National Bank, a national
banking association that executed the within instrument, and also known to me
to be the person who executed it on behalf of said national banking
association, and acknowledged to me that such national banking association
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.
/s/ Robert C. Garrero, Jr.
---------------------------
Robert C. Garrero, Jr.
This notary certificate is invalid if it is detached
from the attached CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
document.
<PAGE>
STATE OF FLORIDA )
) ss.:
COUNTY OF MIAMI-DADE )
The foregoing instrument was acknowledged before me this 18th day of
December 1998 by Jeffrey P. Krasnoff, as President of Lennar Partners, Inc.,
a Florida corporation, on behalf of such corporation; said individual is
personally known to me or has provided a driver's license as identification.
/s/ Adda O. Corrales
---------------------------
Adda O. Corrales
<PAGE>
EXHIBIT A-1
FORM OF CLASS A CERTIFICATE
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 1998-C2
[_____]% Class A-[1][2] Certificate
(Fixed Rate)
No.: [ ] Initial Class A-[1][2]
CUSIP No. 22540A [ ] Certificate Balance:
Rated Final Distribution Date: November 2030 $[ ]
Denomination of this Certificate:
$[ ]
SOLELY FOR FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS
AN INTEREST IN A CLASS OF "REGULAR INTERESTS" IN A "REAL ESTATE MORTGAGE
INVESTMENT CONDUIT" ("REMIC") AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN
SECTION 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE
"CODE"), ASSUMING COMPLIANCE WITH THE REMIC PROVISIONS OF THE CODE.
THIS CERTIFICATE IS NOT INSURED OR GUARANTEED BY THE FEDERAL DEPOSIT
INSURANCE CORPORATION, THE FEDERAL SAVINGS AND LOAN INSURANCE CORPORATION, THE
GOVERNMENT NATIONAL MORTGAGE ASSOCIATION OR ANY OTHER GOVERNMENTAL AGENCY.
Unless and until it is exchanged in whole or in part for
Certificates in definitive form, this Certificate may not be transferred
except as a whole (i) by The Depository Trust Company, a New York corporation
("DTC") to a nominee of DTC, (ii) by a nominee of DTC to DTC or another
nominee of DTC or (iii) by DTC or any such nominee to a successor depository
or a nominee of such successor depository.
Unless this Certificate is presented by an authorized representative
of 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 is made to Cede & Co. or to such other entity as is requested by
an authorized representative of DTC), ANY TRANSFER, PLEDGE, OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the
registered owner hereof, Cede & Co., has an interest herein.
This certifies that CEDE & CO. (the "Certificateholder") is the
registered owner of a beneficial ownership interest in a trust (the "Trust")
created pursuant to a Pooling and Servicing Agreement, dated as of November
11, 1998, (the "Pooling and Servicing Agreement") by and among First Union
National Bank, as Servicer (the "Servicer"), Lennar Partners, Inc., as Special
Servicer ("Special Servicer"), The Chase Manhattan Bank, as Trustee (the
"Trustee"), and Credit Suisse First Boston Mortgage Securities Corp., as
Depositor (the "Depositor"). All capitalized terms used herein and not
otherwise defined herein shall have the meanings thereto ascribed in the
Pooling and Servicing Agreement. This Certificate is described in the Pooling
and Servicing Agreement and is issued pursuant to and subject to the Pooling
and Servicing Agreement. By acceptance of this Certificate, each
Certificateholder assents to and becomes bound by the Pooling and Servicing
Agreement.
On each Distribution Date, the Trustee shall distribute to the
Person in whose name this Certificate is registered on the last Business Day
of the month immediately preceding the month in which such Distribution Date
occurs (or with respect to the first Distribution Date, the Closing Date), an
amount equal to the Percentage Interest represented by this Certificate of the
amount required to be distributed to the Certificateholders of this Class on
such Distribution Date pursuant to Section 4.01 of the Pooling and Servicing
Agreement.
All distributions (other than the final distribution) shall be made
to the Person in whose name the Certificates are registered at the close of
business on each Record Date by wire transfer of immediately available funds
to the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor if such Certificateholder shall have so
notified the Trustee in writing by no later than five Business Days prior to
the Record Date immediately prior to such Distribution Date and is the
registered Certificateholder of Certificates of the Class represented by this
Certificate with an initial Certificate Balance equal to or in excess of
$5,000,000; and in all other cases by check mailed to each such
Certificateholder at such Certificateholder's address appearing in the
Certificate Register, in either case without presentation or surrender of any
Certificate held by such Certificateholder or the making of any notation
thereon. Distributions on the Final Distribution Date with respect to this
Certificate, however, shall require presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders 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 Depositor, the Servicer, the Special Servicer and the
Trustee thereunder and the rights of the Certificateholders thereunder, at any
time by the Depositor, the Servicer, the Special Servicer and the Trustee with
the consent of the Holders of Certificates entitled to at least 66 2/3% of the
Percentage Interests of each Class affected thereby. Any such consent by the
Holder of this Certificate shall be conclusive and binding on such Holder and
upon all future Holders of this Certificate and of any Certificate issued upon
the transfer hereof or in exchange herefor or in lieu hereof whether or not
notation of such consent is made upon this Certificate. The Agreement also
permits the amendment thereof, in certain circumstances, including any
amendment necessary to maintain the status of designated portions of the Trust
Fund as a REMIC, without the consent of the Holders of any of the
Certificates.
No sale, transfer or other disposition of this Certificate shall be
permitted other than in accordance with the provisions of Section 5.02 of the
Pooling and Servicing Agreement.
This Certificate does not represent an obligation of, or an interest
in the Servicer, the Special Servicer, the Depositor or the Trustee, except to
the extent described in the Pooling and Servicing Agreement, or any Affiliate
thereof, nor will this Certificate be insured or guaranteed by any
governmental agency. This Certificate is limited in right of payment to
certain collections on the Mortgage Loans, as more specifically set forth in
the Pooling and Servicing Agreement.
The Holder hereof, by its acceptance of this Certificate, agrees to
look solely to the assets of the Trust Fund, as provided in the Pooling and
Servicing Agreement, for payment hereunder and that the Trustee in its
individual capacity is not personally liable to the Holder hereof for any
amounts payable under this Certificate or the Pooling and Servicing Agreement.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and is qualified in its entirety by the Pooling and
Servicing Agreement. Reference is made to the Pooling and Servicing Agreement
for information with respect to the interests, rights, benefits, obligations,
proceeds and duties evidenced hereby and the rights, duties and immunities of
the Trustee. Copies of the Pooling and Servicing Agreement and all amendments
thereto will be provided to a prospective or actual Certificateholder, upon
written request and, at the Trustee's discretion, payment of a reasonable fee
for any expenses, to the Trustee, at 450 West 33rd Street, 14th Floor, New
York, New York 10001, Attention: Structured Finance Services - CMBS.
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed by the manual or facsimile signature of the duly authorized
officer of the Trustee.
THE CHASE MANHATTAN BANK
not in its individual capacity,
but solely as Trustee
By
----------------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class A-[1][2] Certificates referred to in the
within mentioned Pooling and Servicing Agreement.
THE CHASE MANHATTAN BANK
not in its individual capacity,
but solely as Trustee
By
----------------------------------
Authorized Officer
Dated:
<PAGE>
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _______________________________ the within Credit Suisse First
Boston Mortgage Securities Corp. Commercial Mortgage Pass Through Certificate,
Series 1998-C2, and does hereby irrevocably constitute and appoint
______________________________ Attorney to transfer the said Certificate on
the Certificate Register maintained by the Trustee, with full power of
substitution in the premises.
Dated: _______________ By:__________________________________
Signature
<PAGE>
EXHIBIT A-2
FORM OF CLASS A-X CERTIFICATE
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 1998-C2
Class A-X Certificate
(Fixed Rate)
No.: Original Class A-X Notional
CUSIP No. 22540A [ ] Balance:
Rated Final Distribution Date: November 2030 $[ ]
Notional Denomination of this
Certificate:
$[ ]
THIS CERTIFICATE IS AN "INTEREST ONLY" CERTIFICATE AND DOES NOT HAVE
A PRINCIPAL BALANCE. DISTRIBUTIONS WILL BE CALCULATED ON THE CLASS "A-X
NOTIONAL BALANCE."
SOLELY FOR FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS
AN INTEREST IN A CLASS OF "REGULAR INTERESTS" IN A "REAL ESTATE MORTGAGE
INVESTMENT CONDUIT" ("REMIC") AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN
SECTION 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE
"CODE"), ASSUMING COMPLIANCE WITH THE REMIC PROVISIONS OF THE CODE.
THIS CERTIFICATE IS NOT INSURED OR GUARANTEED BY THE FEDERAL DEPOSIT
INSURANCE CORPORATION, THE FEDERAL SAVINGS AND LOAN INSURANCE CORPORATION, THE
GOVERNMENT NATIONAL MORTGAGE ASSOCIATION OR ANY OTHER GOVERNMENTAL AGENCY.
THE FOLLOWING INFORMATION IS PROVIDED FOR PURPOSES OF APPLYING THE
U.S. FEDERAL INCOME TAX ORIGINAL ISSUE DISCOUNT ("OID") RULES TO THIS BOND.
ASSUMING THE COLLATERAL PREPAYS AT 0% CPR AND THE ARD LOANS PREPAY ON THEIR
ACCELERATED REPAYMENT DATE, THIS CERTIFICATE IS ISSUED ON NOVEMBER 24, 1998,
WITH AN INITIAL COUPON RATE OF _____%. THIS CERTIFICATE HAS BEEN ISSUED WITH
$_____ OF OID PER $1,000 OF INITIAL PRINCIPAL AMOUNT, THE MONTHLY YIELD
EXPRESSED ON AN ANNUAL BASIS IS ____%, AND THE AMOUNT OF OID ATTRIBUTABLE TO
THE INITIAL SHORT ACCRUAL PERIOD IS $____ PER $1,000 OF INITIAL PRINCIPAL
AMOUNT, COMPUTED ASSUMING THE YIELD IS ACCRUED DURING THE INITIAL PERIOD ON
THE BASIS OF DAILY COMPOUNDING.
Unless and until it is exchanged in whole or in part for
Certificates in definitive form, this Certificate may not be transferred
except as a whole (i) by The Depository Trust Company, a New York corporation
("DTC") to a nominee of DTC, (ii) by a nominee of DTC to DTC or another
nominee of DTC or (iii) by DTC or any such nominee to a successor depository
or a nominee of such successor depository.
Unless this Certificate is presented by an authorized representative
of 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 is made to Cede & Co. or to such other entity as is requested by
an authorized representative of DTC), ANY TRANSFER, PLEDGE, OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the
registered owner hereof, Cede & Co., has an interest herein.
This certifies that CEDE & CO. (the "Certificateholder") is the
registered owner of a beneficial ownership interest in a trust (the "Trust")
created pursuant to a Pooling and Servicing Agreement, dated as of November
11, 1998 (the "Pooling and Servicing Agreement") by and among First Union
National Bank, as Servicer (the "Servicer"), Lennar Partners, Inc., as Special
Servicer ("Special Servicer"), The Chase Manhattan Bank, as Trustee (the
"Trustee"), and Credit Suisse First Boston Mortgage Securities Corp., as
Depositor (the "Depositor"). All capitalized terms used herein and not
otherwise defined herein shall have the meanings thereto ascribed in the
Pooling and Servicing Agreement. This Certificate is described in the Pooling
and Servicing Agreement and is issued pursuant to and subject to the Pooling
and Servicing Agreement. By acceptance of this Certificate, each
Certificateholder assents to and becomes bound by the Pooling and Servicing
Agreement.
On each Distribution Date, the Trustee shall distribute to the
Person in whose name this Certificate is registered on the last Business Day
of the month immediately preceding the month in which such Distribution Date
occurs (or with respect to the first Distribution Date, the Closing Date), an
amount equal to the Percentage Interest represented by this Certificate of the
amount required to be distributed to the Certificateholders of this Class on
such Distribution Date pursuant to Section 4.01 of the Pooling and Servicing
Agreement.
All distributions (other than the final distribution) shall be made
to the Person in whose name the Certificates are registered at the close of
business on each Record Date by wire transfer of immediately available funds
to the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor if such Certificateholder shall have so
notified the Trustee in writing by no later than five Business Days prior to
the Record Date immediately prior to such Distribution Date and is the
registered Certificateholder of Certificates of the Class represented by this
Certificate with an initial Notional Balance equal to or in excess of
$5,000,000; and in all other cases by check mailed to each such
Certificateholder at such Certificateholder's address appearing in the
Certificate Register, in either case without presentation or surrender of any
Certificate held by such Certificateholder or the making of any notation
thereon. Distributions on the Final Distribution Date with respect to this
Certificate, however, shall require presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders 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 Depositor, the Servicer, the Special Servicer and the
Trustee thereunder and the rights of the Certificateholders thereunder, at any
time by the Depositor, the Servicer, the Special Servicer and the Trustee with
the consent of the Holders of Certificates entitled to at least 66 2/3% of the
Percentage Interests of each Class affected thereby. Any such consent by the
Holder of this Certificate shall be conclusive and binding on such Holder and
upon all future Holders of this Certificate and of any Certificate issued upon
the transfer hereof or in exchange herefor or in lieu hereof whether or not
notation of such consent is made upon this Certificate. The Agreement also
permits the amendment thereof, in certain circumstances, including any
amendment necessary to maintain the status of designated portions of the Trust
Fund as a REMIC, without the consent of the Holders of any of the
Certificates.
No sale, transfer or other disposition of this Certificate shall be
permitted other than in accordance with the provisions of Section 5.02 of the
Pooling and Servicing Agreement.
This Certificate does not represent an obligation of, or an interest
in the Servicer, the Special Servicer, the Depositor or the Trustee, except to
the extent described in the Pooling and Servicing Agreement, or any Affiliate
thereof, nor will this Certificate be insured or guaranteed by any
governmental agency. This Certificate is limited in right of payment to
certain collections on the Mortgage Loans, as more specifically set forth in
the Pooling and Servicing Agreement.
The Holder hereof, by its acceptance of this Certificate, agrees to
look solely to the assets of the Trust Fund, as provided in the Pooling and
Servicing Agreement, for payment hereunder and that the Trustee in its
individual capacity is not personally liable to the Holder hereof for any
amounts payable under this Certificate or the Pooling and Servicing Agreement.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and is qualified in its entirety by the Pooling and
Servicing Agreement. Reference is made to the Pooling and Servicing Agreement
for information with respect to the interests, rights, benefits, obligations,
proceeds and duties evidenced hereby and the rights, duties and immunities of
the Trustee. Copies of the Pooling and Servicing Agreement and all amendments
thereto will be provided to a prospective or actual Certificateholder, upon
written request and, at the Trustee's discretion, payment of a reasonable fee
for any expenses, to the Trustee, at 450 West 33rd Street, 14th Floor, New
York, New York 10001, Attention: Structured Finance Services - CMBS.
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed by the manual or facsimile signature of the duly authorized
officer of the Trustee.
THE CHASE MANHATTAN BANK
not in its individual capacity,
but solely as Trustee
By:________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class A-X Certificates referred to in the within
mentioned Pooling and Servicing Agreement.
THE CHASE MANHATTAN BANK
not in its individual capacity,
but solely as Trustee
By__________________________________
Authorized Officer
Dated:
<PAGE>
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _______________________________ the within Credit Suisse First
Boston Mortgage Securities Corp. Commercial Mortgage Pass Through Certificate,
Series 1998-C2, and does hereby irrevocably constitute and appoint
______________________________ Attorney to transfer the said Certificate on
the Certificate Register maintained by the Trustee, with full power of
substitution in the premises.
Dated: _____________ By:______________________________________
Signature
<PAGE>
EXHIBIT A-3
FORM OF FIXED RATE MEZZANINE CERTIFICATE
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 1998-C2
[_____]% Class [B][C][D][E] Certificate
(Fixed Rate)
No.: Initial Class [B][C][D][E] Certificate Balance:
CUSIP No. 2250A [ ] $[ ]
Rated Final Distribution Date: Denomination of this Certificate:
November 2030 $[ ]
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE CLASS
A-1, CLASS A-2 AND CLASS A-X [AND CLASS [B][C][D]] CERTIFICATES AS DESCRIBED
IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE
CERTIFICATE REGISTRAR SHALL HAVE RECEIVED EITHER (A) AN INVESTMENT
REPRESENTATION LETTER FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH
CERTIFICATE, IN FORM AND SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR
AND THE DEPOSITOR, TO THE EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS
NOT (i) AN EMPLOYEE BENEFIT OR OTHER PLAN SUBJECT TO THE FIDUCIARY
RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT SECURITY ACT OF 1974, AS
AMENDED ("ERISA"), OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS
AMENDED (THE "CODE"), OR A GOVERNMENTAL PLAN (AS DEFINED IN SECTION 3(32) OF
ERISA) SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW") WHICH IS, TO
A MATERIAL EXTENT, SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE
(EACH, A "PLAN") OR (ii) A PERSON ACTING ON BEHALF OF OR USING THE ASSETS OF
ANY SUCH PLAN (INCLUDING AN ENTITY WHOSE UNDERLYING ASSETS INCLUDE "PLAN
ASSETS" BY REASON OF INVESTMENT IN THE ENTITY BY ANY PLAN AND THE APPLICATION
OF DEPARTMENT OF LABOR REGULATION SECTION 2510.3-101), OTHER THAN AN INSURANCE
COMPANY USING THE ASSETS OF ITS GENERAL ACCOUNT UNDER CIRCUMSTANCES WHEREBY
THE PURCHASE AND HOLDING OF SUBORDINATE CERTIFICATES BY SUCH INSURANCE COMPANY
WOULD BE ELIGIBLE FOR THE EXEMPTIVE RELIEF FROM THE PROHIBITED TRANSACTION
PROVISIONS OF ERISA AND SECTION 4975 OF THE CODE THAT IS AVAILABLE UNDER
SECTIONS I AND III OF PROHIBITED TRANSACTION CLASS EXEMPTION ("PTCE") 95-60,
OR (B) IF SUCH CERTIFICATE IS PRESENTED FOR REGISTRATION IN THE NAME OF A
PERSON DESCRIBED IN CLAUSES (i) OR (ii) ABOVE, AN OPINION OF COUNSEL, IN FORM
AND SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR TO
THE EFFECT THAT SUCH ACQUISITION AND HOLDING OF SUCH CERTIFICATE BY SUCH
PROPOSED PURCHASER OR TRANSFEREE WILL NOT CONSTITUTE OR RESULT IN A NON-EXEMPT
PROHIBITED TRANSACTION UNDER ERISA, SECTION 4975 OF THE CODE OR ANY SIMILAR
LAW AND WILL NOT SUBJECT THE TRUSTEE, THE CERTIFICATE REGISTRAR, THE SERVICER,
THE SPECIAL SERVICER, THE INITIAL PURCAHSER OR THE DEPOSITOR TO ANY OBLIGATION
OR LIABILITY (INCLUDING OBLIGATIONS OR LIABILITIES UNDER ERISA, SECTION 4975
OF THE CODE OR ANY SIMILAR LAW) IN ADDITION TO THOSE SET FORTH IN THE POOLING
AND SERVICING AGREEMENT. IN ADDITION, SO LONG AS THIS CERTIFICATE IS
REGISTERED IN THE NAME OF CEDE & CO., AS NOMINEE OF DTC, ANY PURCHASER OF ANY
SUCH CERTIFICATES WILL BE DEEMED TO HAVE REPRESENTED BY SUCH PURCHASE THAT
EITHER: (A) SUCH PURCHASER IS NOT A PLAN AND IS NOT PURCHASING SUCH
CERTIFICATES BY OR ON BEHALF OF, OR WITH "PLAN ASSETS" OF, ANY PLAN OR (B) THE
PURCHASE OF ANY SUCH CERTIFICATE BY OR ON BEHALF OF, OR WITH "PLAN ASSETS" OF,
ANY PLAN IS PERMISSIBLE UNDER APPLICABLE LAW, WILL NOT RESULT IN ANY
NON-EXEMPT PROHIBITED TRANSACTION UNDER ERISA OR SECTION 4975 OF THE CODE, AND
WILL NOT SUBJECT THE DEPOSITOR, THE TRUSTEE OR THE SERVICER TO ANY OBLIGATION
IN ADDITION TO THOSE UNDERTAKEN IN THE POOLING AND SERVICING AGREEMENT, AND
THE FOLLOWING CONDITIONS ARE MET: (A) THE SOURCE OF FUNDS USED TO PURCHASE
SUCH CERTIFICATE IS AN "INSURANCE COMPANY GENERAL ACCOUNT" (AS SUCH TERM IS
DEFINED IN PTCE 95-60) AND (B) THE CONDITIONS AS SET FORTH IN SECTIONS I AND
III OF PTCE 95-60 HAVE BEEN SATISFIED AS THE DATE OF THE ACQUISITION OF SUCH
CERTIFICATES.
SOLELY FOR FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS
AN INTEREST IN A CLASS OF "REGULAR INTERESTS" IN A "REAL ESTATE MORTGAGE
INVESTMENT CONDUIT" ("REMIC") AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN
SECTION 860G AND 860D OF THE CODE, ASSUMING COMPLIANCE WITH THE REMIC
PROVISIONS OF THE CODE.
THIS CERTIFICATE IS NOT INSURED OR GUARANTEED BY THE FEDERAL DEPOSIT
INSURANCE CORPORATION, THE FEDERAL SAVINGS AND LOAN INSURANCE CORPORATION, THE
GOVERNMENT NATIONAL MORTGAGE ASSOCIATION OR ANY OTHER GOVERNMENTAL AGENCY.
[THE FOLLOWING INFORMATION IS PROVIDED FOR PURPOSES OF APPLYING THE
U.S. FEDERAL INCOME TAX ORIGINAL ISSUE DISCOUNT ("OID") RULES TO THIS BOND.
ASSUMING THE COLLATERAL PREPAYS AT 0% CPR AND THE ARD LOANS PREPAY ON THEIR
ACCELERATED REPAYMENT DATE, THIS CERTIFICATE IS ISSUED ON NOVEMBER 24, 1998,
WITH AN INITIAL COUPON RATE OF _____%. THIS CERTIFICATE HAS BEEN ISSUED WITH
$_____ OF OID PER $1,000 OF INITIAL PRINCIPAL AMOUNT, THE MONTHLY YIELD
EXPRESSED ON AN ANNUAL BASIS IS ____%, AND THE AMOUNT OF OID ATTRIBUTABLE TO
THE INITIAL SHORT ACCRUAL PERIOD IS $____ PER $1,000 OF INITIAL PRINCIPAL
AMOUNT, COMPUTED ASSUMING THE YIELD IS ACCRUED DURING THE INITIAL PERIOD ON
THE BASIS OF DAILY COMPOUNDING.]
Unless and until it is exchanged in whole or in part for
Certificates in definitive form, this Certificate may not be transferred
except as a whole (i) by The Depository Trust Company, a New York corporation
("DTC") to a nominee of DTC, (ii) by a nominee of DTC to DTC or another
nominee of DTC or (iii) by DTC or any such nominee to a successor depository
or a nominee of such successor depository.
Unless this Certificate is presented by an authorized representative
of 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 is made to Cede & Co. or to such other entity as is requested by
an authorized representative of DTC), ANY TRANSFER, PLEDGE, OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the
registered owner hereof, Cede & Co., has an interest herein.
This certifies that CEDE & CO. (the "Certificateholder") is the
registered owner of a beneficial ownership interest in a trust (the "Trust")
created pursuant to a Pooling and Servicing Agreement, dated as of November
11, 1998 (the "Pooling and Servicing Agreement") by and among First Union
National Bank, as Servicer (the "Servicer"), Lennar Partners, Inc., as Special
Servicer ("Special Servicer"), The Chase Manhattan Bank, as Trustee (the
"Trustee"), and Credit Suisse First Boston Mortgage Securities Corp., as
Depositor (the "Depositor"). All capitalized terms used herein and not
otherwise defined herein shall have the meanings thereto ascribed in the
Pooling and Servicing Agreement. This Certificate is described in the Pooling
and Servicing Agreement and is issued pursuant to and subject to the Pooling
and Servicing Agreement. By acceptance of this Certificate, each
Certificateholder assents to and becomes bound by the Pooling and Servicing
Agreement.
On each Distribution Date, the Trustee shall distribute to the
Person in whose name this Certificate is registered on the last Business Day
of the month immediately preceding the month in which such Distribution Date
occurs (or with respect to the first Distribution Date, the Closing Date), an
amount equal to the Percentage Interest represented by this Certificate of the
amount required to be distributed to the Certificateholders of this Class on
such Distribution Date pursuant to Section 4.01 of the Pooling and Servicing
Agreement.
All distributions (other than the final distribution) shall be made
to the Person in whose name the Certificates are registered at the close of
business on each Record Date by wire transfer of immediately available funds
to the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor if such Certificateholder shall have so
notified the Trustee in writing by no later than five Business Days prior to
the Record Date immediately prior to such Distribution Date and is the
registered Certificateholder of Certificates of the Class represented by this
Certificate with an initial Certificate Balance equal to or in excess of
$5,000,000; and in all other cases by check mailed to each such
Certificateholder at such Certificateholder's address appearing in the
Certificate Register, in either case without presentation or surrender of any
Certificate held by such Certificateholder or the making of any notation
thereon. Distributions on the Final Distribution Date with respect to this
Certificate, however, shall require presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders 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 Depositor, the Servicer, the Special Servicer and the
Trustee thereunder and the rights of the Certificateholders thereunder, at any
time by the Depositor, the Servicer, the Special Servicer and the Trustee with
the consent of the Holders of Certificates entitled to at least 66 2/3% of the
Percentage Interests of each Class affected thereby. Any such consent by the
Holder of this Certificate shall be conclusive and binding on such Holder and
upon all future Holders of this Certificate and of any Certificate issued upon
the transfer hereof or in exchange herefor or in lieu hereof whether or not
notation of such consent is made upon this Certificate. The Agreement also
permits the amendment thereof, in certain circumstances, including any
amendment necessary to maintain the status of designated portions of the Trust
Fund as a REMIC, without the consent of the Holders of any of the
Certificates.
No sale, transfer or other disposition of this Certificate shall be
permitted other than in accordance with the provisions of Section 5.02 of the
Pooling and Servicing Agreement.
This Certificate does not represent an obligation of, or an interest
in the Servicer, the Special Servicer, the Depositor or the Trustee, except to
the extent described in the Pooling and Servicing Agreement, or any Affiliate
thereof, nor will this Certificate be insured or guaranteed by any
governmental agency. This Certificate is limited in right of payment to
certain collections on the Mortgage Loans, as more specifically set forth in
the Pooling and Servicing Agreement.
The Holder hereof, by its acceptance of this Certificate, agrees to
look solely to the assets of the Trust Fund, as provided in the Pooling and
Servicing Agreement, for payment hereunder and that the Trustee in its
individual capacity is not personally liable to the Holder hereof for any
amounts payable under this Certificate or the Pooling and Servicing Agreement.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and is qualified in its entirety by the Pooling and
Servicing Agreement. Reference is made to the Pooling and Servicing Agreement
for information with respect to the interests, rights, benefits, obligations,
proceeds and duties evidenced hereby and the rights, duties and immunities of
the Trustee. Copies of the Pooling and Servicing Agreement and all amendments
thereto will be provided to a prospective or actual Certificateholder, upon
written request and, at the Trustee's discretion, payment of a reasonable fee
for any expenses, to the Trustee, at 450 West 33rd Street, 14th Floor, New
York, New York 10001, Attention: Structured Finance Services - CMBS.
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed by the manual or facsimile signature of the duly authorized
officer of the Trustee.
THE CHASE MANHATTAN BANK
not in its individual capacity,
but solely as Trustee
By:__________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class [B][C][D][E] Certificates referred to in
the within mentioned Pooling and Servicing Agreement.
THE CHASE MANHATTAN BANK
not in its individual capacity,
but solely as Trustee
By____________________________________
Authorized Officer
Dated:
<PAGE>
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _______________________________ the within Credit Suisse First
Boston Mortgage Securities Corp. Commercial Mortgage Pass Through Certificate,
Series 1998-C2, and does hereby irrevocably constitute and appoint
______________________________ Attorney to transfer the said Certificate on
the Certificate Register maintained by the Trustee, with full power of
substitution in the premises.
Dated: ________________ By:____________________________
Signature
<PAGE>
EXHIBIT A-4
FORM OF VARIABLE RATE PRIVATE GLOBAL CERTIFICATE
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 1998-C2
[_____]% Class [F][G] Certificate
(Variable Rate)
No.: [ ] Initial Class [F][G] Certificate Balance:
CUSIP No. 22540A [ ] $[ ]
Rated Final Distribution Date: Denomination of this Certificate:
November 2030 $[ ]
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE CLASS
A-1, CLASS A-2, CLASS A-X, CLASS B, CLASS C, CLASS D AND CLASS E [AND CLASS F]
CERTIFICATES AS DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
HEREIN.
THIS CERTIFICATE MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE
CERTIFICATE REGISTRAR SHALL HAVE RECEIVED EITHER (A) AN INVESTMENT
REPRESENTATION LETTER FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH
CERTIFICATE, IN FORM AND SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR
AND THE DEPOSITOR, TO THE EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS
NOT (i) AN EMPLOYEE BENEFIT OR OTHER PLAN SUBJECT TO THE FIDUCIARY
RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT SECURITY ACT OF 1974, AS
AMENDED ("ERISA"), OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS
AMENDED (THE "CODE"), OR A GOVERNMENTAL PLAN (AS DEFINED IN SECTION 3(32) OF
ERISA) SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW") WHICH IS, TO
A MATERIAL EXTENT, SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE
(EACH, A "PLAN") OR (ii) A PERSON ACTING ON BEHALF OF OR USING THE ASSETS OF
ANY SUCH PLAN (INCLUDING AN ENTITY WHOSE UNDERLYING ASSETS INCLUDE "PLAN
ASSETS" BY REASON OF INVESTMENT IN THE ENTITY BY ANY PLAN AND THE APPLICATION
OF DEPARTMENT OF LABOR REGULATION SECTION 2510.3-101), OTHER THAN AN INSURANCE
COMPANY USING THE ASSETS OF ITS GENERAL ACCOUNT UNDER CIRCUMSTANCES WHEREBY
THE PURCHASE AND HOLDING OF SUBORDINATE CERTIFICATES BY SUCH INSURANCE COMPANY
WOULD BE ELIGIBLE FOR THE EXEMPTIVE RELIEF FROM THE PROHIBITED TRANSACTION
PROVISIONS OF ERISA AND SECTION 4975 OF THE CODE THAT IS AVAILABLE UNDER
SECTIONS I AND III OF PROHIBITED TRANSACTION CLASS EXEMPTION ("PTCE") 95-60,
OR (B) IF SUCH CERTIFICATE IS PRESENTED FOR REGISTRATION IN THE NAME OF A
PERSON DESCRIBED IN CLAUSES (i) OR (ii) ABOVE, AN OPINION OF COUNSEL, IN FORM
AND SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR TO
THE EFFECT THAT SUCH ACQUISITION AND HOLDING OF SUCH CERTIFICATE BY SUCH
PROPOSED PURCHASER OR TRANSFEREE WILL NOT CONSTITUTE OR RESULT IN A NON-EXEMPT
PROHIBITED TRANSACTION UNDER ERISA, SECTION 4975 OF THE CODE OR ANY SIMILAR
LAW AND WILL NOT SUBJECT THE TRUSTEE, THE CERTIFICATE REGISTRAR, THE SERVICER,
THE SPECIAL SERVICER, THE INITIAL PURCHASER OR THE DEPOSITOR TO ANY OBLIGATION
OR LIABILITY (INCLUDING OBLIGATIONS OR LIABILITIES UNDER ERISA, SECTION 4975
OF THE CODE OR ANY SIMILAR LAW) IN ADDITION TO THOSE SET FORTH IN THE POOLING
AND SERVICING AGREEMENT. IN ADDITION, SO LONG AS THIS CERTIFICATE IS
REGISTERED IN THE NAME OF CEDE & CO., AS NOMINEE OF DTC, ANY PURCHASER OF ANY
SUCH CERTIFICATES WILL BE DEEMED TO HAVE REPRESENTED BY SUCH PURCHASE THAT
EITHER: (A) SUCH PURCHASER IS NOT A PLAN AND IS NOT PURCHASING SUCH
CERTIFICATES BY OR ON BEHALF OF, OR WITH "PLAN ASSETS" OF, ANY PLAN OR (B) THE
PURCHASE OF ANY SUCH CERTIFICATE BY OR ON BEHALF OF, OR WITH "PLAN ASSETS" OF,
ANY PLAN IS PERMISSIBLE UNDER APPLICABLE LAW, WILL NOT RESULT IN ANY
NON-EXEMPT PROHIBITED TRANSACTION UNDER ERISA OR SECTION 4975 OF THE CODE, AND
WILL NOT SUBJECT THE DEPOSITOR, THE TRUSTEE OR THE SERVICER TO ANY OBLIGATION
IN ADDITION TO THOSE UNDERTAKEN IN THE POOLING AND SERVICING AGREEMENT, AND
THE FOLLOWING CONDITIONS ARE MET: (A) THE SOURCE OF FUNDS USED TO PURCHASE
SUCH CERTIFICATE IS AN "INSURANCE COMPANY GENERAL ACCOUNT" (AS SUCH TERM IS
DEFINED IN PTCE 95-60) AND (B) THE CONDITIONS AS SET FORTH IN SECTIONS I AND
III OF PTCE 95-60 HAVE BEEN SATISFIED AS THE DATE OF THE ACQUISITION OF SUCH
CERTIFICATES.
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. NEITHER
THIS CERTIFICATE NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED,
SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN
THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR
NOT SUBJECT TO, REGISTRATION UNDER THE SECURITIES ACT. EACH PURCHASER OF THIS
CERTIFICATE IS HEREBY NOTIFIED THAT THE SELLER OF THIS CERTIFICATE MAY BE
RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE SECURITIES
ACT PROVIDED BY RULE 144A THEREUNDER.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT
TO OFFER, SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE
WITH ALL APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION
STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR
SO LONG AS THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER
THE SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE HOLDER REASONABLY
BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER AS DEFINED IN RULE 144A IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (C) TO A PERSON WHO IS NOT
A "U.S. PERSON" AS DEFINED IN REGULATION S UNDER THE SECURITIES ACT, (D) ONLY
IF THE INTEREST OF THE PROPOSED TRANSFEREE WILL BE REPRESENTED BY A PRIVATE
DEFINITIVE CERTIFICATE, TO A PERSON WHO IS AN INSTITUTIONAL "ACCREDITED
INVESTOR" AS DEFINED IN RULE 501(A)(1), (2), (3) OR (7) UNDER THE SECURITIES
ACT, THAT IS ACQUIRING THIS CERTIFICATE FOR ITS OWN ACCOUNT (AND NOT FOR THE
ACCOUNT OF OTHERS) OR AS A FIDUCIARY OR AGENT FOR OTHERS (WHICH ARE ALSO
ACCREDITED INVESTORS) FOR INVESTMENT AND NOT WITH A VIEW TO, OR FOR OFFER OR
SALE IN CONNECTION WITH, THE PUBLIC DISTRIBUTION HEREOF, OR (E) PURSUANT TO
ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION AND
DELIVERY BY THE TRANSFEROR TO THE CERTIFICATE REGISTRAR OF A CERTIFICATE OF
TRANSFER IN THE FORM APPEARING ON THE LAST PAGE OF THIS CERTIFICATE.
THE HOLDER OF THIS CERTIFICATE, AND EACH SUBSEQUENT PURCHASER OF
THIS CERTIFICATE, BY PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS
DEEMED TO HAVE AGREED TO COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH
IN THE POOLING AND SERVICING AGREEMENT, AND SUCH HOLDER SHALL, AND EACH
SUBSEQUENT PURCHASER IS REQUIRED TO, NOTIFY ANY PURCHASER OF THIS CERTIFICATE
FROM IT OF THE RESALE RESTRICTIONS REFERRED TO IN THE PREVIOUS PARAGRAPH. A
TRANSFEREE IS ALSO REQUIRED TO DELIVER AN INVESTMENT REPRESENTATION LETTER
SUBSTANTIALLY IN THE FORM OF AN EXHIBIT TO THE POOLING AND SERVICING AGREEMENT
IF SUCH TRANSFEREE IS A QUALIFIED INSTITUTIONAL BUYER AND MAY ALSO BE REQUIRED
TO DELIVER AN OPINION OF COUNSEL IF SUCH TRANSFEREE IS NOT A QUALIFIED
INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A OR IS A U.S PERSON WITHIN
THE MEANING OF RULE 902 UNDER REGULATION S.
SOLELY FOR FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS
AN INTEREST IN A CLASS OF "REGULAR INTERESTS" IN A "REAL ESTATE MORTGAGE
INVESTMENT CONDUIT" ("REMIC") AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN
SECTION 860G AND 860D OF THE CODE, ASSUMING COMPLIANCE WITH THE REMIC
PROVISIONS OF THE CODE.
THIS CERTIFICATE IS NOT INSURED OR GUARANTEED BY THE FEDERAL DEPOSIT
INSURANCE CORPORATION, THE FEDERAL SAVINGS AND LOAN INSURANCE CORPORATION, THE
GOVERNMENT NATIONAL MORTGAGE ASSOCIATION OR ANY OTHER GOVERNMENTAL AGENCY.
THE FOLLOWING INFORMATION IS PROVIDED FOR PURPOSES OF APPLYING THE
U.S. FEDERAL INCOME TAX ORIGINAL ISSUE DISCOUNT ("OID") RULES TO THIS BOND.
ASSUMING THE COLLATERAL PREPAYS AT 0% CPR AND THE ARD LOANS PREPAY ON THEIR
ACCELERATED REPAYMENT DATE, THIS CERTIFICATE IS ISSUED ON NOVEMBER 24, 1998,
WITH AN INITIAL COUPON RATE OF _____%. THIS CERTIFICATE HAS BEEN ISSUED WITH
$_____ OF OID PER $1,000 OF INITIAL PRINCIPAL AMOUNT, THE MONTHLY YIELD
EXPRESSED ON AN ANNUAL BASIS IS ____%, AND THE AMOUNT OF OID ATTRIBUTABLE TO
THE INITIAL SHORT ACCRUAL PERIOD IS $____ PER $1,000 OF INITIAL PRINCIPAL
AMOUNT, COMPUTED ASSUMING THE YIELD IS ACCRUED DURING THE INITIAL PERIOD ON
THE BASIS OF DAILY COMPOUNDING.
Unless and until it is exchanged in whole or in part for
Certificates in definitive form, this Certificate may not be transferred
except as a whole (i) by The Depository Trust Company, a New York corporation
("DTC") to a nominee of DTC, (ii) by a nominee of DTC to DTC or another
nominee of DTC or (iii) by DTC or any such nominee to a successor depository
or a nominee of such successor depository.
Unless this Certificate is presented by an authorized representative
of 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 is made to Cede & Co. or to such other entity as is requested by
an authorized representative of DTC), ANY TRANSFER, PLEDGE, OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the
registered owner hereof, Cede & Co., has an interest herein.
This certifies that CEDE & CO. (the "Certificateholder") is the
registered owner of a beneficial ownership interest in a trust (the "Trust")
created pursuant to a Pooling and Servicing Agreement, dated as of November
11, 1998 (the "Pooling and Servicing Agreement") by and among First Union
National Bank, as Servicer (the "Servicer"), Lennar Partners, Inc., as Special
Servicer ("Special Servicer"), The Chase Manhattan Bank, as Trustee (the
"Trustee"), and Credit Suisse First Boston Mortgage Securities Corp., as
Depositor (the "Depositor"). All capitalized terms used herein and not
otherwise defined herein shall have the meanings thereto ascribed in the
Pooling and Servicing Agreement. This Certificate is described in the Pooling
and Servicing Agreement and is issued pursuant to and subject to the Pooling
and Servicing Agreement. By acceptance of this Certificate, each
Certificateholder assents to and becomes bound by the Pooling and Servicing
Agreement.
On each Distribution Date, the Trustee shall distribute to the
Person in whose name this Certificate is registered on the last Business Day
of the month immediately preceding the month in which such Distribution Date
occurs (or with respect to the first Distribution Date, the Closing Date), an
amount equal to the Percentage Interest represented by this Certificate of the
amount required to be distributed to the Certificateholders of this Class on
such Distribution Date pursuant to Section 4.01 of the Pooling and Servicing
Agreement.
All distributions (other than the final distribution) shall be made
to the Person in whose name the Certificates are registered at the close of
business on each Record Date by wire transfer of immediately available funds
to the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor if such Certificateholder shall have so
notified the Trustee in writing by no later than five Business Days prior to
the Record Date immediately prior to such Distribution Date and is the
registered Certificateholder of Certificates of the Class represented by this
Certificate with an initial Certificate Balance equal to or in excess of
$5,000,000; and in all other cases by check mailed to each such
Certificateholder at such Certificateholder's address appearing in the
Certificate Register, in either case without presentation or surrender of any
Certificate held by such Certificateholder or the making of any notation
thereon. Distributions on the Final Distribution Date with respect to this
Certificate, however, shall require presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders 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 Depositor, the Servicer, the Special Servicer and the
Trustee thereunder and the rights of the Certificateholders thereunder, at any
time by the Depositor, the Servicer, the Special Servicer and the Trustee with
the consent of the Holders of Certificates entitled to at least 66 2/3% of the
Percentage Interests of each Class affected thereby. Any such consent by the
Holder of this Certificate shall be conclusive and binding on such Holder and
upon all future Holders of this Certificate and of any Certificate issued upon
the transfer hereof or in exchange herefor or in lieu hereof whether or not
notation of such consent is made upon this Certificate. The Agreement also
permits the amendment thereof, in certain circumstances, including any
amendment necessary to maintain the status of designated portions of the Trust
Fund as a REMIC, without the consent of the Holders of any of the
Certificates.
No sale, transfer or other disposition of this Certificate shall be
permitted other than in accordance with the provisions of Section 5.02 of the
Pooling and Servicing Agreement.
This Certificate does not represent an obligation of, or an interest
in the Servicer, the Special Servicer, the Depositor or the Trustee, except to
the extent described in the Pooling and Servicing Agreement, or any Affiliate
thereof, nor will this Certificate be insured or guaranteed by any
governmental agency. This Certificate is limited in right of payment to
certain collections on the Mortgage Loans, as more specifically set forth in
the Pooling and Servicing Agreement.
The Holder hereof, by its acceptance of this Certificate, agrees to
look solely to the assets of the Trust Fund, as provided in the Pooling and
Servicing Agreement, for payment hereunder and that the Trustee in its
individual capacity is not personally liable to the Holder hereof for any
amounts payable under this Certificate or the Pooling and Servicing Agreement.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and is qualified in its entirety by the Pooling and
Servicing Agreement. Reference is made to the Pooling and Servicing Agreement
for information with respect to the interests, rights, benefits, obligations,
proceeds and duties evidenced hereby and the rights, duties and immunities of
the Trustee. Copies of the Pooling and Servicing Agreement and all amendments
thereto will be provided to a prospective or actual Certificateholder, upon
written request and, at the Trustee's discretion, payment of a reasonable fee
for any expenses, to the Trustee, at 450 West 33rd Street, 14th Floor, New
York, New York 10001, Attention: Structured Finance Services - CMBS.
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed by the manual or facsimile signature of the duly authorized
officer of the Trustee.
THE CHASE MANHATTAN BANK
not in its individual capacity,
but solely as Trustee
By:______________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class [F][G] Certificates referred to in the
within mentioned Pooling and Servicing Agreement.
THE CHASE MANHATTAN BANK
not in its individual capacity,
but solely as Trustee
By_________________________________
Authorized Officer
Dated:
<PAGE>
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _______________________________ the within Credit Suisse First
Boston Mortgage Securities Corp. Commercial Mortgage Pass Through Certificate,
Series 1998-C2, and does hereby irrevocably constitute and appoint
______________________________ Attorney to transfer the said Certificate on
the Certificate Register maintained by the Trustee, with full power of
substitution in the premises.
Dated: ______________ By:_____________________________________
Signature
<PAGE>
EXHIBIT A-5
[RESERVED]
<PAGE>
EXHIBIT A-6
FORM OF VARIABLE RATE PRIVATE DEFINITIVE CERTIFICATE
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 1998-C2
Class [F][G][H][I][J] Certificate
(Variable Rate)
No.: [ ] Initial Certificate Principal Balance:
CUSIP No. 22540A [ ] $[ ]
Rated Final Distribution Date: Denomination of this Certificate:
November 2030 $[ ]
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE CLASS
A-1, CLASS A-2, CLASS A-X, CLASS B, CLASS C, CLASS D, CLASS E[, CLASS F, CLASS
G, CLASS H AND CLASS I] CERTIFICATES AS DESCRIBED IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE
CERTIFICATE REGISTRAR SHALL HAVE RECEIVED EITHER (A) AN INVESTMENT
REPRESENTATION LETTER FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH
CERTIFICATE, IN FORM AND SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR
AND THE DEPOSITOR, TO THE EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS
NOT (i) AN EMPLOYEE BENEFIT OR OTHER PLAN SUBJECT TO THE FIDUCIARY
RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT SECURITY ACT OF 1974, AS
AMENDED ("ERISA"), OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS
AMENDED (THE "CODE"), OR A GOVERNMENTAL PLAN (AS DEFINED IN SECTION 3(32) OF
ERISA) SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW") WHICH IS, TO
A MATERIAL EXTENT, SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE
(EACH, A "PLAN") OR (ii) A PERSON ACTING ON BEHALF OF OR USING THE ASSETS OF
ANY SUCH PLAN (INCLUDING AN ENTITY WHOSE UNDERLYING ASSETS INCLUDE "PLAN
ASSETS" BY REASON OF INVESTMENT IN THE ENTITY BY ANY PLAN AND THE APPLICATION
OF DEPARTMENT OF LABOR REGULATION SECTION 2510.3-101), OTHER THAN AN INSURANCE
COMPANY USING THE ASSETS OF ITS GENERAL ACCOUNT UNDER CIRCUMSTANCES WHEREBY
THE PURCHASE AND HOLDING OF SUBORDINATE CERTIFICATES BY SUCH INSURANCE COMPANY
WOULD BE ELIGIBLE FOR THE EXEMPTIVE RELIEF FROM THE PROHIBITED TRANSACTION
PROVISIONS OF ERISA AND SECTION 4975 OF THE CODE THAT IS AVAILABLE UNDER
SECTIONS I AND III OF PROHIBITED TRANSACTION CLASS EXEMPTION ("PTCE") 95-60,
OR (B) IF SUCH CERTIFICATE IS PRESENTED FOR REGISTRATION IN THE NAME OF A
PERSON DESCRIBED IN CLAUSES (i) OR (ii) ABOVE, AN OPINION OF COUNSEL, IN FORM
AND SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR TO
THE EFFECT THAT SUCH ACQUISITION AND HOLDING OF SUCH CERTIFICATE BY SUCH
PROPOSED PURCHASER OR TRANSFEREE WILL NOT CONSTITUTE OR RESULT IN A NON-EXEMPT
PROHIBITED TRANSACTION UNDER ERISA, SECTION 4975 OF THE CODE OR ANY SIMILAR
LAW AND WILL NOT SUBJECT THE TRUSTEE, THE CERTIFICATE REGISTRAR, THE SERVICER,
THE SPECIAL SERVICER, THE INITIAL PURCHASER OR THE DEPOSITOR TO ANY OBLIGATION
OR LIABILITY (INCLUDING OBLIGATIONS OR LIABILITIES UNDER ERISA, SECTION 4975
OF THE CODE OR ANY SIMILAR LAW) IN ADDITION TO THOSE SET FORTH IN THE POOLING
AND SERVICING AGREEMENT.
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. NEITHER
THIS CERTIFICATE NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED,
SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN
THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR
NOT SUBJECT TO, REGISTRATION UNDER THE SECURITIES ACT. EACH PURCHASER OF THIS
CERTIFICATE IS HEREBY NOTIFIED THAT THE SELLER OF THIS CERTIFICATE MAY BE
RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE SECURITIES
ACT PROVIDED BY RULE 144A THEREUNDER.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT
TO OFFER, SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE
WITH ALL APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION
STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR
SO LONG AS THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER
THE SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE HOLDER REASONABLY
BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER AS DEFINED IN RULE 144A IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (C) TO A PERSON WHO IS NOT
A "U.S. PERSON" AS DEFINED IN REGULATION S UNDER THE SECURITIES ACT, (D) TO A
PERSON WHO IS AN INSTITUTIONAL "ACCREDITED INVESTOR" AS DEFINED IN RULE
501(A)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT, THAT IS ACQUIRING THIS
CERTIFICATE FOR ITS OWN ACCOUNT (AND NOT FOR THE ACCOUNT OF OTHERS) OR AS A
FIDUCIARY OR AGENT FOR OTHERS (WHICH ARE ALSO ACCREDITED INVESTORS) FOR
INVESTMENT AND NOT WITH A VIEW TO, OR FOR OFFER OR SALE IN CONNECTION WITH,
THE PUBLIC DISTRIBUTION HEREOF, OR (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION
FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT IN EACH OF
THE FOREGOING CASES TO THE COMPLETION AND DELIVERY BY THE TRANSFEROR TO THE
CERTIFICATE REGISTRAR OF A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON
THE LAST PAGE OF THIS CERTIFICATE.
THE HOLDER OF THIS CERTIFICATE, AND EACH SUBSEQUENT PURCHASER OF
THIS CERTIFICATE, BY PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS
DEEMED TO HAVE AGREED TO COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH
IN THE POOLING AND SERVICING AGREEMENT, AND SUCH HOLDER SHALL, AND EACH
SUBSEQUENT PURCHASER IS REQUIRED TO, NOTIFY ANY PURCHASER OF THIS CERTIFICATE
FROM IT OF THE RESALE RESTRICTIONS REFERRED TO IN THE PREVIOUS PARAGRAPH. A
TRANSFEREE IS ALSO REQUIRED TO DELIVER AN INVESTMENT REPRESENTATION LETTER
SUBSTANTIALLY IN THE FORM OF AN EXHIBIT TO THE POOLING AND SERVICING AGREEMENT
IF SUCH TRANSFEREE IS A QUALIFIED INSTITUTIONAL BUYER AND MAY ALSO BE REQUIRED
TO DELIVER AN OPINION OF COUNSEL IF SUCH TRANSFEREE IS NOT A QUALIFIED
INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A OR IS A U.S PERSON WITHIN
THE MEANING OF RULE 902 UNDER REGULATION S.
SOLELY FOR FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS
AN INTEREST IN A CLASS OF "REGULAR INTERESTS" IN A "REAL ESTATE MORTGAGE
INVESTMENT CONDUIT" ("REMIC") AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN
SECTION 860G AND 860D OF THE CODE, ASSUMING COMPLIANCE WITH THE REMIC
PROVISIONS OF THE CODE.
THIS CERTIFICATE IS NOT INSURED OR GUARANTEED BY THE FEDERAL DEPOSIT
INSURANCE CORPORATION, THE FEDERAL SAVINGS AND LOAN INSURANCE CORPORATION, THE
GOVERNMENT NATIONAL MORTGAGE ASSOCIATION OR ANY OTHER GOVERNMENTAL AGENCY.
THE FOLLOWING INFORMATION IS PROVIDED FOR PURPOSES OF APPLYING THE
U.S. FEDERAL INCOME TAX ORIGINAL ISSUE DISCOUNT ("OID") RULES TO THIS BOND.
ASSUMING THE COLLATERAL PREPAYS AT 0% CPR AND THE ARD LOANS PREPAY ON THEIR
ACCELERATED REPAYMENT DATE, THIS CERTIFICATE IS ISSUED ON NOVEMBER 24, 1998,
WITH AN INITIAL COUPON RATE OF _____%. THIS CERTIFICATE HAS BEEN ISSUED WITH
$_____ OF OID PER $1,000 OF INITIAL PRINCIPAL AMOUNT, THE MONTHLY YIELD
EXPRESSED ON AN ANNUAL BASIS IS ____%, AND THE AMOUNT OF OID ATTRIBUTABLE TO
THE INITIAL SHORT ACCRUAL PERIOD IS $____ PER $1,000 OF INITIAL PRINCIPAL
AMOUNT, COMPUTED ASSUMING THE YIELD IS ACCRUED DURING THE INITIAL PERIOD ON
THE BASIS OF DAILY COMPOUNDING.
This certifies that CREDIT SUISSE FIRST BOSTON CORPORATION (the
"Certificateholder") is the registered owner of a beneficial ownership
interest in a trust (the "Trust") created pursuant to a Pooling and Servicing
Agreement, dated as of November 11, 1998 (the "Pooling and Servicing
Agreement") by and among First Union National Bank, as Servicer (the
"Servicer"), Lennar Partners, Inc., as Special Servicer ("Special Servicer"),
The Chase Manhattan Bank, as Trustee (the "Trustee"), and Credit Suisse First
Boston Mortgage Securities Corp., as Depositor (the "Depositor"). All
capitalized terms used herein and not otherwise defined herein shall have the
meanings thereto ascribed in the Pooling and Servicing Agreement. This
Certificate is described in the Pooling and Servicing Agreement and is issued
pursuant to and subject to the Pooling and Servicing Agreement. By acceptance
of this Certificate, each Certificateholder assents to and becomes bound by
the Pooling and Servicing Agreement.
On each Distribution Date, the Trustee shall distribute to the
Person in whose name this Certificate is registered on the last Business Day
of the month immediately preceding the month in which such Distribution Date
occurs (or with respect to the first Distribution Date, the Closing Date), an
amount equal to the Percentage Interest represented by this Certificate of the
amount required to be distributed to the Certificateholders of this Class on
such Distribution Date pursuant to Section 4.01 of the Pooling and Servicing
Agreement.
All distributions (other than the final distribution) shall be made
to the Person in whose name the Certificates are registered at the close of
business on each Record Date by wire transfer of immediately available funds
to the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor if such Certificateholder shall have so
notified the Trustee in writing by no later than five Business Days prior to
the Record Date immediately prior to such Distribution Date and is the
registered Certificateholder of Certificates of the Class represented by this
Certificate with an initial Certificate Balance equal to or in excess of
$5,000,000; and in all other cases by check mailed to each such
Certificateholder at such Certificateholder's address appearing in the
Certificate Register, in either case without presentation or surrender of any
Certificate held by such Certificateholder or the making of any notation
thereon. Distributions on the Final Distribution Date with respect to this
Certificate, however, shall require presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders 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 Depositor, the Servicer, the Special Servicer and the
Trustee thereunder and the rights of the Certificateholders thereunder, at any
time by the Depositor, the Servicer, the Special Servicer and the Trustee with
the consent of the Holders of Certificates entitled to at least 66 2/3% of the
Percentage Interests of each Class affected thereby. Any such consent by the
Holder of this Certificate shall be conclusive and binding on such Holder and
upon all future Holders of this Certificate and of any Certificate issued upon
the transfer hereof or in exchange herefor or in lieu hereof whether or not
notation of such consent is made upon this Certificate. The Agreement also
permits the amendment thereof, in certain circumstances, including any
amendment necessary to maintain the status of designated portions of the Trust
Fund as a REMIC, without the consent of the Holders of any of the
Certificates.
No sale, transfer or other disposition of this Certificate shall be
permitted other than in accordance with the provisions of Section 5.02 of the
Pooling and Servicing Agreement.
This Certificate does not represent an obligation of, or an interest
in the Servicer, the Special Servicer, the Depositor or the Trustee, except to
the extent described in the Pooling and Servicing Agreement, or any Affiliate
thereof, nor will this Certificate be insured or guaranteed by any
governmental agency. This Certificate is limited in right of payment to
certain collections on the Mortgage Loans, as more specifically set forth in
the Pooling and Servicing Agreement.
The Holder hereof, by its acceptance of this Certificate, agrees to
look solely to the assets of the Trust Fund, as provided in the Pooling and
Servicing Agreement, for payment hereunder and that the Trustee in its
individual capacity is not personally liable to the Holder hereof for any
amounts payable under this Certificate or the Pooling and Servicing Agreement.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and is qualified in its entirety by the Pooling and
Servicing Agreement. Reference is made to the Pooling and Servicing Agreement
for information with respect to the interests, rights, benefits, obligations,
proceeds and duties evidenced hereby and the rights, duties and immunities of
the Trustee. Copies of the Pooling and Servicing Agreement and all amendments
thereto will be provided to a prospective or actual Certificateholder, upon
written request and, at the Trustee's discretion, payment of a reasonable fee
for any expenses, to the Trustee, at 450 West 33rd Street, 14th Floor, New
York, New York 10001, Attention: Structured Finance Services - CMBS.
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed by the manual or facsimile signature of the duly authorized
officer of the Trustee.
THE CHASE MANHATTAN BANK
not in its individual capacity,
but solely as Trustee
By____________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class [F][G][H][I][J] Certificates referred to in
the within mentioned Pooling and Servicing Agreement.
THE CHASE MANHATTAN BANK
not in its individual capacity,
but solely as Trustee
By______________________________
Authorized Officer
Dated:
<PAGE>
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _______________________________ the within Credit Suisse First
Boston Mortgage Securities Corp. Commercial Mortgage Pass Through Certificate,
Series 1998-C2, and does hereby irrevocably constitute and appoint
______________________________ Attorney to transfer the said Certificate on
the Certificate Register maintained by the Trustee, with full power of
substitution in the premises.
Dated: __________________ By:________________________________
Signature
<PAGE>
EXHIBIT A-7
FORM OF CLASS V CERTIFICATE
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 1998-C2
Class V Certificate
No.: [ ] Percentage Interest: 100%
THIS CERTIFICATE IS AN "INTEREST ONLY" CERTIFICATE AND DOES NOT HAVE
A PRINCIPAL BALANCE AND IS ENTITLED TO RECEIVE DISTRIBUTIONS ONLY IN RESPECT
OF EXCESS INTEREST, IF ANY.
THIS CERTIFICATE MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE
CERTIFICATE REGISTRAR SHALL HAVE RECEIVED EITHER (A) AN INVESTMENT
REPRESENTATION LETTER FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH
CERTIFICATE, IN FORM AND SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR
AND THE DEPOSITOR, TO THE EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS
NOT (i) AN EMPLOYEE BENEFIT OR OTHER PLAN SUBJECT TO THE FIDUCIARY
RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT SECURITY ACT OF 1974, AS
AMENDED ("ERISA"), OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS
AMENDED (THE "CODE"), OR A GOVERNMENTAL PLAN (AS DEFINED IN SECTION 3(32) OF
ERISA) SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW") WHICH IS, TO
A MATERIAL EXTENT, SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE
(EACH, A "PLAN") OR (ii) A PERSON ACTING ON BEHALF OF OR USING THE ASSETS OF
ANY SUCH PLAN (INCLUDING AN ENTITY WHOSE UNDERLYING ASSETS INCLUDE "PLAN
ASSETS" BY REASON OF INVESTMENT IN THE ENTITY BY ANY PLAN AND THE APPLICATION
OF DEPARTMENT OF LABOR REGULATION SECTION 2510.3-101), OTHER THAN AN INSURANCE
COMPANY USING THE ASSETS OF ITS GENERAL ACCOUNT UNDER CIRCUMSTANCES WHEREBY
THE PURCHASE AND HOLDING OF SUBORDINATE CERTIFICATES BY SUCH INSURANCE COMPANY
WOULD BE ELIGIBLE FOR THE EXEMPTIVE RELIEF FROM THE PROHIBITED TRANSACTION
PROVISIONS OF ERISA AND SECTION 4975 OF THE CODE THAT IS AVAILABLE UNDER
SECTIONS I AND III OF PROHIBITED TRANSACTION CLASS EXEMPTION 95-60, OR (B) IF
SUCH CERTIFICATE IS PRESENTED FOR REGISTRATION IN THE NAME OF A PERSON
DESCRIBED IN CLAUSES (i) OR (ii) ABOVE, AN OPINION OF COUNSEL, IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR TO THE
EFFECT THAT SUCH ACQUISITION AND HOLDING OF SUCH CERTIFICATE BY SUCH PROPOSED
PURCHASER OR TRANSFEREE WILL NOT CONSTITUTE OR RESULT IN A NON-EXEMPT
PROHIBITED TRANSACTION UNDER ERISA, SECTION 4975 OF THE CODE OR ANY SIMILAR
LAW AND WILL NOT SUBJECT THE TRUSTEE, THE CERTIFICATE REGISTRAR, THE SERVICER,
THE SPECIAL SERVICER, THE INITIAL PURCHASER OR THE DEPOSITOR TO ANY OBLIGATION
OR LIABILITY (INCLUDING OBLIGATIONS OR LIABILITIES UNDER ERISA, SECTION 4975
OF THE CODE OR ANY SIMILAR LAW) IN ADDITION TO THOSE SET FORTH IN THE POOLING
AND SERVICING AGREEMENT.
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. NEITHER
THIS CERTIFICATE NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED,
SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN
THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR
NOT SUBJECT TO, REGISTRATION UNDER THE SECURITIES ACT. EACH PURCHASER OF THIS
CERTIFICATE IS HEREBY NOTIFIED THAT THE SELLER OF THIS CERTIFICATE MAY BE
RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE SECURITIES
ACT PROVIDED BY RULE 144A THEREUNDER.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT
TO OFFER, SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE
WITH ALL APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION
STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR
SO LONG AS THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER
THE SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE HOLDER REASONABLY
BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER AS DEFINED IN RULE 144A IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (C) TO A PERSON WHO IS NOT
A "U.S. PERSON" AS DEFINED IN REGULATION S UNDER THE SECURITIES ACT, OR (D)
PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF
THE SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION
AND DELIVERY BY THE TRANSFEROR TO THE CERTIFICATE REGISTRAR OF A CERTIFICATE
OF TRANSFER IN THE FORM APPEARING ON THE LAST PAGE OF THIS CERTIFICATE.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT
TO OFFER, SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE TO ANY PERSON THAT IS AN
"INELIGIBLE CLASS V OWNER" (AS DEFINED IN THE POOLING AND SERVICING AGREEMENT.)
THE HOLDER OF THIS CERTIFICATE, AND EACH SUBSEQUENT PURCHASER OF
THIS CERTIFICATE, BY PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS
DEEMED TO HAVE AGREED TO COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH
IN THE POOLING AND SERVICING AGREEMENT, AND SUCH HOLDER SHALL, AND EACH
SUBSEQUENT PURCHASER IS REQUIRED TO, NOTIFY ANY PURCHASER OF THIS CERTIFICATE
FROM IT OF THE RESALE RESTRICTIONS REFERRED TO IN THE PREVIOUS PARAGRAPH. A
TRANSFEREE IS ALSO REQUIRED TO DELIVER AN INVESTMENT REPRESENTATION LETTER
SUBSTANTIALLY IN THE FORM OF AN EXHIBIT TO THE POOLING AND SERVICING AGREEMENT
IF SUCH TRANSFEREE IS A QUALIFIED INSTITUTIONAL BUYER AND MAY ALSO BE REQUIRED
TO DELIVER AN OPINION OF COUNSEL IF SUCH TRANSFEREE IS NOT A QUALIFIED
INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A OR IS A U.S PERSON WITHIN
THE MEANING OF RULE 902 UNDER REGULATION S.
THIS CERTIFICATE REPRESENTS, FOR FEDERAL INCOME TAX PURPOSES, AN
INTEREST IN A GRANTOR TRUST CONSISTING OF THE EXCESS INTEREST (AS DEFINED IN
THE POOLING AND SERVICING AGREEMENT) AND ANY HOLDER THEREOF AGREES TO TREAT
ITS INTEREST IN THE EXCESS INTEREST IN ACCORDANCE WITH THIS REPRESENTATION.
THIS CERTIFICATE IS NOT INSURED OR GUARANTEED BY THE FEDERAL DEPOSIT
INSURANCE CORPORATION, THE FEDERAL SAVINGS AND LOAN INSURANCE CORPORATION, THE
GOVERNMENT NATIONAL MORTGAGE ASSOCIATION OR ANY OTHER GOVERNMENTAL AGENCY.
This certifies that CREDIT SUISSE FIRST BOSTON CORPORATION (the
"Certificateholder") is the registered owner of a beneficial ownership
interest in a trust (the "Trust") created pursuant to a Pooling and Servicing
Agreement, dated as of November 11, 1998, (the "Pooling and Servicing
Agreement") by and among First Union National Bank, as Servicer (the
"Servicer"), Lennar Partners, Inc., as Special Servicer ("Special Servicer"),
The Chase Manhattan Bank, as Trustee (the "Trustee"), and Credit Suisse First
Boston Mortgage Securities Corp., as Depositor (the "Depositor"). All
capitalized terms used herein and not otherwise defined herein shall have the
meanings thereto ascribed in the Pooling and Servicing Agreement. This
Certificate is described in the Pooling and Servicing Agreement and is issued
pursuant to and subject to the Pooling and Servicing Agreement. By acceptance
of this Certificate, each Certificateholder assents to and becomes bound by
the Pooling and Servicing Agreement.
On each Distribution Date, the Trustee shall distribute to the
Person in whose name this Certificate is registered on the last Business Day
of the month immediately preceding the month in which such Distribution Date
occurs (or with respect to the first Distribution Date, the Closing Date), an
amount equal to the Percentage Interest set forth above of the amount required
to be distributed to the Certificateholders of this Class on such Distribution
Date pursuant to Section 4.01 of the Pooling and Servicing Agreement.
All distributions (other than the final distribution) shall be made
to the Person in whose name the Certificates are registered at the close of
business on each Record Date by wire transfer of immediately available funds
to the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor if such Certificateholder shall have so
notified the Trustee in writing by no later than five Business Days prior to
the Record Date immediately prior to such Distribution Date and is the
registered Certificateholder of Certificates of the Class represented by this
Certificate with an initial Certificate Balance equal to or in excess of
$5,000,000; and in all other cases by check mailed to each such
Certificateholder at such Certificateholder's address appearing in the
Certificate Register, in either case without presentation or surrender of any
Certificate held by such Certificateholder or the making of any notation
thereon. Distributions on the Final Distribution Date with respect to this
Certificate, however, shall require presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders 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 Depositor, the Servicer, the Special Servicer and the
Trustee thereunder and the rights of the Certificateholders thereunder, at any
time by the Depositor, the Servicer, the Special Servicer and the Trustee with
the consent of the Holders of Certificates entitled to at least 66 2/3% of the
Percentage Interests of each Class affected thereby. Any such consent by the
Holder of this Certificate shall be conclusive and binding on such Holder and
upon all future Holders of this Certificate and of any Certificate issued upon
the transfer hereof or in exchange herefor or in lieu hereof whether or not
notation of such consent is made upon this Certificate. The Agreement also
permits the amendment thereof, in certain circumstances, including any
amendment necessary to maintain the status of designated portions of the Trust
Fund as a REMIC, without the consent of the Holders of any of the
Certificates.
No sale, transfer or other disposition of this Certificate shall be
permitted other than in accordance with the provisions of Section 5.02 of the
Pooling and Servicing Agreement.
This Certificate does not represent an obligation of, or an interest
in the Servicer, the Special Servicer, the Depositor or the Trustee, except to
the extent described in the Pooling and Servicing Agreement, or any Affiliate
thereof, nor will this Certificate be insured or guaranteed by any
governmental agency. This Certificate is limited in right of payment to
certain collections on the Mortgage Loans, as more specifically set forth in
the Pooling and Servicing Agreement.
The Holder hereof, by its acceptance of this Certificate, agrees to
look solely to the assets of the Trust Fund, as provided in the Pooling and
Servicing Agreement, for payment hereunder and that the Trustee in its
individual capacity is not personally liable to the Holder hereof for any
amounts payable under this Certificate or the Pooling and Servicing Agreement.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and is qualified in its entirety by the Pooling and
Servicing Agreement. Reference is made to the Pooling and Servicing Agreement
for information with respect to the interests, rights, benefits, obligations,
proceeds and duties evidenced hereby and the rights, duties and immunities of
the Trustee. Copies of the Pooling and Servicing Agreement and all amendments
thereto will be provided to a prospective or actual Certificateholder, upon
written request and, at the Trustee's discretion, payment of a reasonable fee
for any expenses, to the Trustee, at 450 West 33rd Street, 14th Floor, New
York, New York 10001, Attention: Structured Finance Services - CMBS.
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed by the manual or facsimile signature of the duly authorized
officer of the Trustee.
THE CHASE MANHATTAN BANK
not in its individual capacity,
but solely as Trustee
By:______________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class V Certificates referred to in the within
mentioned Pooling and Servicing Agreement.
THE CHASE MANHATTAN BANK
not in its individual capacity,
but solely as Trustee
By______________________________
Authorized Officer
Dated:
<PAGE>
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _______________________________ the within Credit Suisse First
Boston Mortgage Securities Corp. Commercial Mortgage Pass Through Certificate,
Series 1998-C2, and does hereby irrevocably constitute and appoint
______________________________ Attorney to transfer the said Certificate on
the Certificate Register maintained by the Trustee, with full power of
substitution in the premises.
Dated: ___________________ By:_______________________________
Signature
<PAGE>
EXHIBIT A-8
FORM OF RESIDUAL CERTIFICATE
Class [R][LR] CERTIFICATE
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. NEITHER
THIS CERTIFICATE NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED,
SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN
THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR
NOT SUBJECT TO, REGISTRATION UNDER THE SECURITIES ACT. EACH PURCHASER OF THIS
CERTIFICATE IS HEREBY NOTIFIED THAT THE SELLER OF THIS CERTIFICATE MAY BE
RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE SECURITIES
ACT PROVIDED BY RULE 144A THEREUNDER.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT
TO OFFER, SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE
WITH ALL APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION
STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR
SO LONG AS THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER
THE SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE HOLDER REASONABLY
BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER AS DEFINED IN RULE 144A IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, OR (C) PURSUANT TO ANOTHER
AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT,
SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION AND DELIVERY BY THE
TRANSFEROR TO THE CERTIFICATE REGISTRAR OF A CERTIFICATE OF TRANSFER IN THE
FORM APPEARING ON THE LAST PAGE OF THIS CERTIFICATE.
THE HOLDER OF THIS CERTIFICATE, AND EACH SUBSEQUENT PURCHASER OF
THIS CERTIFICATE, BY PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS
DEEMED TO HAVE AGREED TO COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH
IN THE POOLING AND SERVICING AGREEMENT, AND SUCH HOLDER SHALL, AND EACH
SUBSEQUENT PURCHASER IS REQUIRED TO, NOTIFY ANY PURCHASER OF THIS CERTIFICATE
FROM IT OF THE RESALE RESTRICTIONS REFERRED TO IN THE PREVIOUS PARAGRAPH. A
TRANSFEREE IS ALSO REQUIRED TO DELIVER AN INVESTMENT REPRESENTATION LETTER
SUBSTANTIALLY IN THE FORM OF AN EXHIBIT TO THE POOLING AND SERVICING AGREEMENT
IF SUCH TRANSFEREE IS A QUALIFIED INSTITUTIONAL BUYER AND MAY ALSO BE REQUIRED
TO DELIVER AN OPINION OF COUNSEL IF SUCH TRANSFEREE IS NOT A QUALIFIED
INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A.
THIS CERTIFICATE IS NOT INSURED OR GUARANTEED BY THE FEDERAL DEPOSIT
INSURANCE CORPORATION, THE GOVERNMENT NATIONAL MORTGAGE ASSOCIATION OR ANY
OTHER GOVERNMENTAL AGENCY.
THIS CERTIFICATE MAY NOT BE HELD OR TRANSFERRED TO A NON-U.S. PERSON
(AS DEFINED IN THE POOLING AND SERVICING AGREEMENT) OR DISQUALIFIED
ORGANIZATION (AS DEFINED BELOW).
SOLELY FOR FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS
AN INTEREST IN THE ONLY "RESIDUAL INTEREST" IN A "REAL ESTATE MORTGAGE
INVESTMENT CONDUIT" ("REMIC") AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN
SECTION 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE
"CODE"), ASSUMING COMPLIANCE WITH THE REMIC PROVISIONS OF THE CODE.
THIS CERTIFICATE MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE
CERTIFICATE REGISTRAR SHALL HAVE RECEIVED EITHER (A) AN INVESTMENT
REPRESENTATION LETTER FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH
CERTIFICATE, IN FORM AND SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR
AND THE DEPOSITOR, TO THE EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS
NOT (i) AN EMPLOYEE BENEFIT OR OTHER PLAN SUBJECT TO THE FIDUCIARY
RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT SECURITY ACT OF 1974, AS
AMENDED ("ERISA"), OR SECTION 4975 OF THE CODE, OR A GOVERNMENTAL PLAN (AS
DEFINED IN SECTION 3(32) OF ERISA) SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW
("SIMILAR LAW") WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO THE FOREGOING
PROVISIONS OF ERISA OR THE CODE (EACH, A "PLAN") OR (ii) A PERSON ACTING ON
BEHALF OF OR USING THE ASSETS OF ANY SUCH PLAN (INCLUDING AN ENTITY WHOSE
UNDERLYING ASSETS INCLUDE "PLAN ASSETS" BY REASON OF INVESTMENT IN THE ENTITY
BY ANY PLAN AND THE APPLICATION OF DEPARTMENT OF LABOR REGULATION SECTION
2510.3-101), OR (B) IF SUCH CERTIFICATE IS PRESENTED FOR REGISTRATION IN THE
NAME OF A PERSON DESCRIBED IN CLAUSES (i) OR (ii) ABOVE, AN OPINION OF
COUNSEL, IN FORM AND SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND
THE DEPOSITOR TO THE EFFECT THAT SUCH ACQUISITION AND HOLDING OF SUCH
CERTIFICATE BY SUCH PROPOSED PURCHASER OR TRANSFEREE WILL NOT CONSTITUTE OR
RESULT IN A NON-EXEMPT PROHIBITED TRANSACTION UNDER ERISA, SECTION 4975 OF THE
CODE OR ANY SIMILAR LAW AND WILL NOT SUBJECT THE TRUSTEE, THE CERTIFICATE
REGISTRAR, THE SERVICER, THE SPECIAL SERVICER, THE INITIAL PURCHASER OR THE
DEPOSITOR TO ANY OBLIGATION OR LIABILITY (INCLUDING OBLIGATIONS OR LIABILITIES
UNDER ERISA, SECTION 4975 OF THE CODE OR ANY SIMILAR LAW) IN ADDITION TO THOSE
SET FORTH IN THE POOLING AND SERVICING AGREEMENT.
TRANSFER OF THIS CLASS [R][LR] CERTIFICATE IS RESTRICTED AS SET
FORTH IN THE POOLING AND SERVICING AGREEMENT. NO TRANSFER OF THIS CLASS
[R][LR] CERTIFICATE MAY BE MADE TO A "DISQUALIFIED ORGANIZATION" OR A NON-U.S.
PERSON (AS DEFINED IN THE POOLING AND SERVICING AGREEMENT). A DISQUALIFIED
ORGANIZATION (AS DEFINED IN THE POOLING AND SERVICING AGREEMENT) INCLUDES: ANY
OF (i) THE UNITED STATES, ANY STATE OR POLITICAL SUBDIVISION THEREOF, ANY
POSSESSION OF THE UNITED STATES OR ANY AGENCY OR INSTRUMENTALITY OF ANY OF THE
FOREGOING (OTHER THAN AN INSTRUMENTALITY THAT IS A CORPORATION IF ALL OF ITS
ACTIVITIES ARE SUBJECT TO TAX AND, EXCEPT FOR FHLMC, A MAJORITY OF ITS BOARD
OF DIRECTORS IS NOT SELECTED BY SUCH GOVERNMENTAL UNIT), (ii) A FOREIGN
GOVERNMENT, ANY INTERNATIONAL ORGANIZATION OR ANY AGENCY OR INSTRUMENTALITY OF
ANY OF THE FOREGOING, (iii) ANY ORGANIZATION (OTHER THAN CERTAIN FARMERS'
COOPERATIVES DESCRIBED IN SECTION 521 OF THE CODE) THAT IS EXEMPT FROM THE TAX
IMPOSED BY CHAPTER 1 OF THE CODE (INCLUDING THE TAX IMPOSED BY SECTION 511 OF
THE CODE ON UNRELATED BUSINESS TAXABLE INCOME), (iv) RURAL ELECTRIC AND
TELEPHONE COOPERATIVES DESCRIBED IN SECTION 1381(A)(2)(C) OF THE CODE AND (v)
AN ELECTING LARGE PARTNERSHIP UNDER CODE SECTION 775. NO TRANSFER OF THIS
CLASS [R][LR] CERTIFICATE WILL BE REGISTERED BY THE TRUSTEE UNLESS THE
PROPOSED TRANSFEREE HAS DELIVERED AN AFFIDAVIT AFFIRMING, AMONG OTHER THINGS,
THAT THE PROPOSED TRANSFEREE IS NOT A DISQUALIFIED ORGANIZATION, IS NOT A
NON-U.S. PERSON, AND IS NOT ACQUIRING THE CLASS [R][LR] CERTIFICATE FOR THE
ACCOUNT OF A DISQUALIFIED ORGANIZATION OR A NON-U.S. PERSON. NOTWITHSTANDING
THE REGISTRATION IN THE CERTIFICATE REGISTER OF ANY TRANSFER, SALE OR OTHER
DISPOSITION OF THIS CERTIFICATE TO A DISQUALIFIED ORGANIZATION OR A NON-U.S.
PERSON OR ANY AGENT OF A DISQUALIFIED ORGANIZATION OR A NON U.S. PERSON, 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 THIS CERTIFICATE BY ACCEPTANCE OF THIS CERTIFICATE
SHALL BE DEEMED TO HAVE CONSENTED TO THE PROVISIONS OF THIS PARAGRAPH. A COPY
OF THE FORM OF AFFIDAVIT REQUIRED OF EACH PROPOSED TRANSFEREE IS ON FILE AND
AVAILABLE FROM THE TRUSTEE.
A TRANSFER IN VIOLATION OF THE APPLICABLE RESTRICTIONS MAY GIVE RISE
TO A SUBSTANTIAL TAX UPON THE UNAFFILIATED SELLER OR, IN CERTAIN CASES, UPON
AN AGENT ACTING FOR THE TRANSFEREE. A PASS-THROUGH ENTITY THAT HOLDS THIS
CLASS [R][LR] CERTIFICATE AND THAT HAS A DISQUALIFIED ORGANIZATION AS A RECORD
OWNER IN ANY TAXABLE YEAR GENERALLY WILL BE SUBJECT TO A TAX FOR EACH SUCH
YEAR EQUAL TO THE PRODUCT OF (A) THE AMOUNT OF EXCESS INCLUSIONS WITH RESPECT
TO THE PORTION OF THIS CERTIFICATE OWNED THROUGH SUCH PASS-THROUGH ENTITY BY
SUCH DISQUALIFIED ORGANIZATION, AND (B) THE HIGHEST MARGINAL FEDERAL TAX RATE
ON CORPORATIONS. FOR PURPOSES OF THE PRECEDING SENTENCE, THE TERM
"PASS-THROUGH" ENTITY INCLUDES REGULATED INVESTMENT COMPANIES, REAL ESTATE
INVESTMENT TRUSTS, COMMON TRUST FUNDS, PARTNERSHIPS, TRUSTS, ESTATES,
COOPERATIVES TO WHICH PART I OF SUBCHAPTER I OF THE CODE APPLIES AND, EXCEPT
AS PROVIDED IN REGULATIONS, NOMINEES. ALL INTERESTS IN AN "ELECTING LARGE
PARTNERSHIP" WILL BE TREATED AS HELD BY DISQUALIFIED ORGANIZATIONS FOR
PURPOSES OF THIS TAX.
<PAGE>
FORM OF RESIDUAL CERTIFICATE
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 1998-C2
Class [R][LR] Certificate
[Upper][Lower] Tier REMIC Residual
No: [ ] Percentage Interest: 100%
This certifies that CREDIT SUISSE FIRST BOSTON CORPORATION (the
"Certificateholder") is the registered owner of a beneficial ownership
interest in a trust (the "Trust") created pursuant to a Pooling and Servicing
Agreement, dated as of November 11, 1998 (the "Pooling and Servicing
Agreement") by and among First Union National Bank, as Servicer (the
"Servicer"), Lennar Partners, Inc., as Special Servicer ("Special Servicer"),
The Chase Manhattan Bank, as Trustee (the "Trustee"), and Credit Suisse First
Boston Mortgage Securities Corp., as Depositor (the "Depositor"). All
capitalized terms used herein and not otherwise defined herein shall have the
meanings thereto ascribed in the Pooling and Servicing Agreement. This
Certificate is described in the Pooling and Servicing Agreement and is issued
pursuant to and subject to the Pooling and Servicing Agreement. By acceptance
of this Certificate, each Certificateholder assents to and becomes bound by
the Pooling and Servicing Agreement.
On each Distribution Date, the Trustee shall distribute to the
Person in whose name this Certificate is registered on the last Business Day
of the month immediately preceding the month in which such Distribution Date
occurs (or with respect to the first Distribution Date, the Closing Date), an
amount equal to the Percentage Interest set forth above of the amount required
to be distributed to the Certificateholders of this Class on such Distribution
Date pursuant to Section 4.01 of the Pooling and Servicing Agreement.
All distributions (other than the final distribution) shall be made
to the Person in whose name the Certificates are registered at the close of
business on each Record Date by wire transfer of immediately available funds
to the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor if such Certificateholder shall have so
notified the Trustee in writing by no later than five Business Days prior to
the Record Date immediately prior to such Distribution Date and is the
registered Certificateholder of Certificates of the Class represented by this
Certificate with an initial Certificate Balance equal to or in excess of
$5,000,000; and in all other cases by check mailed to each such
Certificateholder at such Certificateholder's address appearing in the
Certificate Register, in either case without presentation or surrender of any
Certificate held by such Certificateholder or the making of any notation
thereon. Distributions on the Final Distribution Date with respect to this
Certificate, however, shall require presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders 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 Depositor, the Servicer, the Special Servicer and the
Trustee thereunder and the rights of the Certificateholders thereunder, at any
time by the Depositor, the Servicer, the Special Servicer and the Trustee with
the consent of the Holders of Certificates entitled to at least 66(% of the
Percentage Interests of each Class affected thereby. Any such consent by the
Holder of this Certificate shall be conclusive and binding on such Holder and
upon all future Holders of this Certificate and of any Certificate issued upon
the transfer hereof or in exchange herefor or in lieu hereof whether or not
notation of such consent is made upon this Certificate. The Agreement also
permits the amendment thereof, in certain circumstances, including any
amendment necessary to maintain the status of designated portions of the Trust
Fund as a REMIC, without the consent of the Holders of any of the
Certificates.
No sale, transfer or other disposition of this Certificate shall be
permitted other than in accordance with the provisions of Section 5.02 of the
Pooling and Servicing Agreement.
This Certificate does not represent an obligation of, or an interest
in the Servicer, the Special Servicer, the Depositor or the Trustee, except to
the extent described in the Pooling and Servicing Agreement, or any Affiliate
thereof, nor will this Certificate be insured or guaranteed by any
governmental agency. This Certificate is limited in right of payment to
certain collections on the Mortgage Loans, as more specifically set forth in
the Pooling and Servicing Agreement.
The Holder hereof, by its acceptance of this Certificate, agrees to
look solely to the assets of the Trust Fund, as provided in the Pooling and
Servicing Agreement, for payment hereunder and that the Trustee in its
individual capacity is not personally liable to the Holder hereof for any
amounts payable under this Certificate or the Pooling and Servicing Agreement.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and is qualified in its entirety by the Pooling and
Servicing Agreement. Reference is made to the Pooling and Servicing Agreement
for information with respect to the interests, rights, benefits, obligations,
proceeds and duties evidenced hereby and the rights, duties and immunities of
the Trustee. Copies of the Pooling and Servicing Agreement and all amendments
thereto will be provided to a prospective or actual Certificateholder, upon
written request and, at the Trustee's discretion, payment of a reasonable fee
for any expenses, to the Trustee, at 450 West 33rd Street, 14th Floor, New
York, New York 10001, Attention: Structured Finance Services - CMBS.
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed by the manual or facsimile signature of the duly authorized
officer of the Trustee.
THE CHASE MANHATTAN BANK
not in its individual capacity,
but solely as Trustee
By:________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class [R][LR] Certificates referred to in the
within mentioned Pooling and Servicing Agreement.
THE CHASE MANHATTAN BANK
not in its individual capacity,
but solely as Trustee
By__________________________________
Authorized Officer
Dated:
<PAGE>
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _______________________________ the within Credit Suisse First
Boston Mortgage Securities Corp. Commercial Mortgage Pass Through Certificate,
Series 1998-C2, and does hereby irrevocably constitute and appoint
______________________________ Attorney to transfer the said Certificate on
the Certificate Register maintained by the Trustee, with full power of
substitution in the premises.
Dated: __________________ By:__________________________________
Signature
<PAGE>
EXHIBIT B
MORTGAGE LOAN SCHEDULE
<TABLE>
<CAPTION>
CSFB
Loan Control Loan Cuf-off Date
No. No. Group Property Name Borrower Name Balance
<S> <C> <C> <C> <C> <C>
1 5 2 Intell/ReichmannPortfolioSummary IPCCommercialProperti1es,LLC $86,666,578
3 7 2 ButeraPortfolioSummary ButeraProperties,LLC 82,871,008
4 8 2 PatriotAmericanSummary W-GreenspointLP&Chicago-ESLLC 81,569,558
5 10 1 L'EnfantPlazaSummary PotomacCreekAssociatesLP 74,961,792
2 6 1 180WaterStreet 180WaterStreetAssociates,L.P. 74,948,322
6 11 2 260-261MadisonAvenue 260/261MadisonEquitiesCorp. 74,355,366
7 12 2 TridentCenter TridentCenter,LP 60,000,000
8 2 2 ThurmanMultifamilyPortfolioSummary ThurmanMultifamilyOpportunities 55,745,250
9 13 2 KollCorporatePlaza CorporatePlazaAssociatesLLC 54,819,238
10 3 2 PinstripeMultifamilyPortfolioSummary MultipleSinglePurposeBankruptcyRemoteEntities 52,709,690
11 14 1 PearlHighlandsCenter PearlHighlandsCenterAssociates,LP 49,972,867
12 15 2 1133ConnecticutAvenue Connecticut/DeSalesPartnership 46,021,342
13 4 2 GardenVarietyApartmentsPortfolioSummary MultipleSinglePurposeBankruptcyRemoteEntities 44,088,900
14 16 1 DonatelliPortfolioSummary FPRHoldingsLimitedPartnership 41,540,422
15 18 2 CamcoSummary MidstarProperties,Ltd. 36,953,806
16 19 1 Accor-TexasSummary TexasS9LLC 30,176,866
17 20 1 8484WilshireBoulevard L.Flynt,LTD.-8484,Inc. 23,700,000
18 21 2 CourthouseSquareApartments CourthouseSquare,LLC 23,564,880
19 273 1 UnitedArtists-5TheatersSummary TheaterInvestorsII,LLC 23,302,898
20 22 2 RamblewoodVillageApartments RamblewoodHillProperties,LLC 22,220,441
21 24 1 LipkinPortfolioSummary MLPAssociates,L.P.andTown&CountryAssociates 19,716,966
22 23 2 GrandUnionSummary FirstMountain,L.P.etal 19,662,220
23 25 1 Accor-FloridaSummary FloridaS9LLC 19,143,664
24 26 2 SummitPortfolioSummary NewCarsunHills,L.P. 17,790,686
25 28 1 AmericanRestaurantGroup,Inc.Summary ARGPropertiesI,LLC 17,787,585
26 29 1 Accor-MidwestSummary MidwestS9LLC 15,623,817
27 30 2 VentanaCanyonApartments VentanaCanyonPartners,LLC 15,316,465
28 31 2 EnglishVillageApartments EnglishVillageAssociatesLLC 15,222,781
29 32 1 Accor-EastSummary EastS9LLC 14,443,020
30 33 1 Cinemark-Austin PricibaEyTrustXIII 14,388,230
31 34 1 TownandCountryShoppingCenter ThirdFairfax,LLC 13,993,157
32 36 1 Accor-SoutheastSummary SoutheastS9LLC 13,763,265
33 37 1 RegalCinema PalmBeachRegal,L.P. 13,473,026
34 38 1 SouthsideMall SouthWilliamsonDevelopmemtCompanyofKentuckyL 13,243,338
35 39 1 Accor-WestSummary WestS9LLC 13,112,290
36 41 2 McKnightPlaceExtendedCare McKnightPlaceExtendedCare,L.L.C. 12,774,778
37 42 1 TamarusIandIIApartments SummitLasVegasLLC 12,657,153
38 43 2 Shaw'sShoppingCenter CoralNewHavenAssociatesII,LLC 12,493,327
39 44 1 ThePradaBuilding KProperties,Inc. 11,936,969
40 46 2 St.LandryPlazaShoppingCenter StLandryPartners 10,776,767
41 47 1 GardenRidge GardenRidgeHilliardDelawareBusinessTrust 10,627,254
42 48 1 JewelryTheatreBuilding TheJewelryTheatreBuilding,LLC 10,094,357
43 50 1 HolidayInn-FarmingtonHills FarmingtonHillsMotelAssociates,LLC 9,979,093
44 79 2 WhisperingPalms-ViscayaApart WentwoodCapitalFundV,L.P. 9,920,464
45 51 1 1000SylvanAvenue 1000SylvanAvenueAssociates,LLC 9,616,048
46 52 2 K-MartPlaza GoodrichHazletL.L.C. 9,281,232
47 53 2 LincolnPlazaHotel T.R.&B.Property,LLC 8,996,493
48 55 2 IslandWalkShoppingCenter IslandWalkShoppingCenter 8,700,000
49 266 2 ForestRidgeShoppingCenter AshevilleForestInvestors,LLC 8,050,000
50 56 1 AgawanStop&Shop AGAWAMS&SLimitedPartnership 7,984,278
51 58 1 Hoyt's-Bellingham IntercontinentalBellinghamTheaterDelawareBusin 7,943,633
52 60 2 StirlingIndustrialPark StirlingIndustrialPark,JointVenture 7,764,366
53 999 1 PamidaSummary PamidaLLC 7,662,521
54 61 2 BloomfieldMultiSummary KaufmanBloomfieldPropertiesLLC,etal 7,438,145
55 65 2 WendellTerrace WendellTerraceOwnersCorp. 7,000,000
56 67 1 WashingtonHUDSummary ChehalisGardenLLC 6,798,452
57 888 1 BestBuySummary Net2CantonLLC 6,645,906
58 69 2 NorthpointeShoppingCenter HPI-FWWestPartnersFourL.P. $6,597,114
59 70 1 U.S.EquitiesIISummary U.S.EquitiesII,L.P. 6,514,620
60 71 2 East138thStreet RosgroRealtyCo.,L.P. 6,300,581
61 68 2 St.CharlesPlaza St.CharlesPartnersL.P. 6,300,000
62 75 2 PFI-IgnacioGardens ProfessionalInvestorsSecurityFundXVIII 6,228,111
63 77 2 StateFarmBuilding FFALSAssociates 5,984,382
64 78 2 TimeWarnerBuilding RMAQRealty,LLC 5,974,670
65 82 2 SunsetPlazaShoppingCenter SunsetPlazaStationLLC 5,783,844
66 84 2 CentroPlaza LincolnInvestors,LLC 5,612,164
67 270 2 SherwoodForestdbaGrandOaks BrandonSherwoodForestAssociates,L.P. 5,600,000
68 86 1 ShoppesofWiltonManor AmericanEquitiesLtd.No.6 5,482,156
69 87 1 EssexPortfolioSummary Penn-OhioMicrotelLLC 5,328,399
70 88 2 RoyalDaneMall RoyalDaneMallCorp. 5,278,249
71 89 1 29JohnStreet 29JohnStreetLLC 5,240,984
72 268 2 WarringtonApartments WarringtonApartments,LLC 5,197,109
73 90 1 PlazaDiamondBar PlazaDiamondBarPartners,LLC 5,178,746
74 92 2 RioDelOroRacquetClub RioDelOroRacquetClub,LLC 4,827,366
75 93 2 CenturySquareApartments AvenelApartments,LTD 4,793,647
76 95 1 East-West4LLCSummary East-West4LLC 4,738,569
77 97 1 AlamedaOffice AlamedaMedicalCenter,LLC 4,600,000
78 98 2 JeffersonPlazaSummary YorukProperties,LLC 4,591,080
79 80 2 Bloomfield-Lex 11422-26TiaraStreetLimitedPartnership,etal 4,555,639
80 99 1 CarrollPoolSummary C&IProperties,L.L.C. 4,498,950
81 265 2 CopacabanaMobileHomePark RichardHall,L.P. 4,442,095
82 100 1 BudgetelSt.Charles St.CharlesMotel,LLC 4,417,462
83 101 2 942HydePark JTJDevelopment,LLC 4,390,626
84 102 1 LGInternationalBuilding CerritosRealtyAssociates,LLC 4,340,558
85 104 2 HomesteadGardensApartments HomesteadGardensLLC 4,274,070
86 105 2 WestwoodPortfolioSummary LindaCourt,Inc.etal 4,201,726
87 106 2 CherryHillPlaza TheDrakeTowerLimitedPartnership 4,098,160
88 110 2 PFI-LincolnVilla ProfessionalInvestorsSecurityFundXIII,LP 4,063,115
89 107 1 BaysceneMobilehomePark BaysceneAssociates,LLC 4,035,586
90 96 2 EdgewaterSquare BiloxiPartnersLP 4,000,000
91 108 1 EconomicPressBuilding EPProperty,Inc. 3,996,282
92 109 1 CommerceSecurityCenter CommerceSecurityCenterPartnership 3,981,726
93 111 2 PFI-Northgate ProfessionalInvestorsSecurityFundIX,LP 3,862,209
94 112 2 DerrerFieldEstatesApartments GraochAssociates#50LimitedPartnership 3,854,487
95 113 1 CedarwoodValleyOfficePark CVOPAssociates,LLC 3,832,454
96 116 1 OneFinderneAvenue FinderneAssociates 3,790,432
97 117 1 BestWesternChateauSuiteHotel ShelbyL.Smith,Trustee,dbaChateauSuiteHtl.of 3,730,683
98 118 2 AffordableWarehouses AffordableWarehouses 3,683,096
99 267 2 Burke-LewisApartments BurkeLewisApartmentsAssociates,LLC 3,642,973
100 122 1 RiteAid-Burton R.A.C.BurtonL.L.C. 3,560,238
101 123 2 AMPBuilding ChubbBranchburgL.L.C. 3,558,024
102 124 1 HolidayInnExpress Layton,LLC/HospitalityInvestors,LLCJointVentu 3,496,226
103 125 2 AnchorageTradeCenterBuilding BayviewCommercialBuildingLLC 3,488,643
104 128 1 QualityInn-Nautilus SouthRoyalCorporation 3,290,225
105 129 2 RainTreePlaza DarlaRaintree,LLC 3,228,459
106 130 1 ComfortInn-Greensboro BPRHospitality,Inc. 3,215,828
107 131 2 1270GerardAvenue NorthStateRealtyAssociates,LLC 3,195,383
108 133 1 SuburbanLodgeofBaymeadows SoutheasternLodges,LLC 3,144,317
109 134 1 ComfortInnBLR Properties,Inc. 3,137,998
110 135 2 PFI-Creekside ProfessionalInvestorsSecurityFundII 3,039,590
111 132 2 PFI-Fairway ProfessionalInvestorsSecurityFundXIV,LP 3,013,602
112 137 1 FranklinCourt QXYLido,LLC 2,998,789
113 139 1 WestLancasterPlaza CommercialProperties,LLC 2,923,402
114 140 1 733YonkersAvenue 733Realty,LLC 2,898,018
115 142 2 BariManor BariManorProperties,Inc. $2,883,445
116 144 1 Eckerd's-Berwick#5923 BerwickMallLLC 2,781,678
117 145 1 244West39thStreet 244W.39thSt.RealtyInc. 2,759,884
118 143 2 690GerardAvenue BergerAssociatesLLC 2,740,000
119 147 2 LakePointeApartments LakePointeApartmentHomes,Inc. 2,736,597
121 146 2 2300GrandConcourse KarenManorAssociatesLLC 2,720,000
120 148 2 230East167thStreet Sid-JonPropertiesAssociates,LLC 2,720,000
122 149 1 CVS-ForestHill WiltonPartnersForestHill,LLC 2,671,964
123 160 1 OfficeDepot-Dallas RICLoversLaneTrust 2,524,380
124 154 1 8000NorthFederalHighway NorthFederalHighwayAssociates,Ltd. 2,495,191
125 155 1 PortofinoBeachHotel PBH,LLC 2,495,993
126 156 1 CVS-Auburn CourtandUnion,LLC 2,485,162
127 158 2 PFI-IgnacioPines ProfessionalInvestorsSecurityFundX,LP 2,478,850
128 159 1 CVS-Montgomery MitchellMontgomeryI,LLC 2,427,442
129 157 2 984SheridanAvenue N.J.Z.CompanyLLC 2,400,000
130 162 2 ShopRiteCenter Y.D.B.ShopriteL.C. 2,398,617
131 163 2 111East167thStreet SharaAssociatesLLC 2,396,503
132 164 1 CVS-Cranston 1178-1194PontiacAvenueLLC 2,373,332
133 152 2 PFI-OakHillApartments ProfessionalInvestorsSecurityFundXVII,LP 2,301,932
134 168 2 176East176th StreetLynseyAssociates,LLC 2,300,000
135 166 1 CVS-Bessemer CS-Bessemer,LLC 2,299,743
136 167 2 2585-93GrandConcourse MandyAssociatesLLC 2,296,681
137 170 1 2899-2901ThirdAvenue D.H.RealtyHoldings,LLC 2,273,396
138 169 1 CVS-Middlefield MiddlefieldOHBusinessTrust 2,251,091
139 161 2 1210ShermanAvenue J.A.M.AssociatesLLC 2,250,000
140 153 2 215MountHopePlace DrewDevelopmentLimited 2,250,000
141 165 2 HudsonViewEstates HudsonViewEstates,Inc. 2,238,792
142 173 1 BelleairBazaar BelleairBazaar,LLC 2,236,000
143 171 2 ChateauThierryApartments HayneBoulevardInvestments#1 2,215,063
144 172 1 CVS-ColonialHeights ColonialHeightsVABusinessTrust 2,213,198
145 175 1 CVS-Augusta AugustaGABusinessTrust 2,196,408
146 176 1 SafeguardSelfStorage DoravilleProperties,LLC 2,175,519
147 177 1 CVS-NewHaven#6496 G.B.NewHavenDevelopersLLC 2,173,888
148 178 1 CVS-Huntersville HuntersvilleNCBusinessTrust 2,172,174
149 272 1 BuenaParkManorMHP BuenaParkManorAssociates,LLC 2,144,931
150 179 1 ComfortInn-Petersburg AMIR,Inc. 2,143,220
151 180 1 CVS-Ringgold RinggoldGABusinessTrust 2,116,349
152 181 2 ContinentalPak Continental&DeutschInc.andContinentalPakCor 2,098,968
153 183 2 2544ValentineAvenue KellyAssociatesLLC 2,096,970
154 184 1 CVS-Cleveland ClevelandOHBusinessTrust 2,090,866
155 186 1 CVS-Madison MadisonNCBusinessTrust 2,077,611
156 185 2 PFI-Westview ProfessionalInvestorsSecurityFundVI 2,036,056
157 188 1 CVS-Painesville PainsvilleOHBusinessTrust 2,015,924
158 189 1 CVS-Pelzer CPPelzer,LLC 2,012,127
159 211 2 PFI-IgnacioHillsIII ProfessionalInvestorsSecurityFundIII,LP 2,006,070
160 191 1 WalgreensPlaza ShoppingPlazaatWiltonManors,Ltd. 1,995,780
161 193 1 BestWestern-WrightPatterson GreeneManagementCorp. 1,994,076
162 195 2 ClarionHotel OceanViewResort 1,991,585
163 194 2 7600MedleyIndustrialBuilding 7600MedleyWarehouseJointVenture 1,991,039
164 197 1 CVS-Smyrna SmyrnaTNBusinessTrust 1,971,569
165 199 1 CitrusPlaza CitrusPlazaPartners 1,930,000
166 200 2 CaneVillage/IndianSummerApartments IndianSummerApartments,Inc. 1,915,683
167 198 2 2908-10ValentineAvenue MerryAssociatesLLC 1,860,000
168 202 1 416-418Knickerbocker NathanCheney,TrusteeF/B/OElliotCohen 1,845,638
169 196 2 2MinervaPlace HAFAssociates,LLC 1,840,000
170 201 2 PFI-NorthernApartments ProfessionalInvestorsSecurityFundV 1,829,152
171 203 2 SpartaGreenTownhouses SpartaBrookAssociates,L.P. 1,823,017
172 204 1 CVS-Owensboro OwensboroKYBusinessTrust $1,814,530
173 205 1 CVS-Barnwell BarnwellSCBusinessTrust 1,805,561
174 207 2 48HillStreet BLWHillSt.,LLC 1,799,102
175 206 1 GalaxyHotel BhagymalaxmiInnCorp. 1,797,417
176 208 2 ElmwoodGalleria ElmwoodCorporation 1,796,856
177 209 1 CVS-Marysville MarysvilleOHBusinessTrust 1,785,062
178 182 2 1791GrandConcourse DenpatAssociates,LLC 1,777,000
179 187 2 2505OlinvilleAvenue 2505OlinvilleAvenue,LLC 1,735,000
180 212 1 EconoLodge-Biloxi KrupaluCorporation 1,716,503
181 217 1 CVS-Bedford BedfordOHBusinessTrust 1,623,093
182 220 1 IngramParkPlazaShoppingCenter Ithaca-Ingram,LTD 1,598,773
183 221 1 RiteAid-Detroit S.D.A.,LLC 1,598,697
184 222 2 PowellStreetWarehouses PowellStreetProperties,Inc. 1,580,199
185 218 2 3041HollandAvenue MicbryAssociates,LLC 1,580,000
186 214 2 3031HollandAvenue TREMMAssociatesLLC 1,548,000
187 219 2 1240ShermanAvenue Deb-bieRealtyAssociates,LLC 1,525,000
188 226 1 2174PelhamAssociates 2174PelhamAssociatesLLC 1,496,463
189 227 1 CVS-Cairo CairoAssociatesLLC 1,444,114
190 229 2 PFI-Strawberry ProfessionalInvestorsSecurityFundVIII,LP 1,430,337
191 228 1 CVS-Hopewell GustineHopewellAssociates,Ltd. 1,402,926
192 233 1 54-64BroadStreet BroadStreetRealtyEnterprises,LLC 1,347,461
193 236 2 PFI-ViaCasitas ProfessionalInvestorsSecurityFundXI,LP 1,338,379
194 234 1 BestWestern-Celebration Shivani,Inc. 1,334,556
195 237 1 RiteAid-Dearborn WyomingDiversey,LLC 1,321,705
196 239 1 GatewayRetailCenter TYGOMT,LC 1,297,292
197 246 2 PFI-IgnacioHillsI ProfessionalInvestorsSecurityFundI 1,284,404
198 230 2 1945LoringPlaceSouth AndrewAssociatesLLC 1,280,000
199 240 2 ThreePinesApartments SycamoreCanyonCorporation 1,255,595
200 241 1 363BloomfieldAvenue ThePhoenixMontclairPartnership,L.P. 1,248,673
201 248 2 ParkerPlazaShoppingCenter ParkerPlaza-GrecoLimitedLiabilityCompany 1,198,882
202 243 1 Nature'sEdgeAssistedLivingFacility RobertGuimondandJoyceGuimond 1,194,637
203 244 2 PFI-CountryClub ProfessionalInvestorsSecurityFundXV,LP 1,120,480
204 245 2 202IndustrialLoop 202RealtyCorporation 1,106,000
205 249 2 StonegateApartments HilbertPropertiesII 1,047,473
206 250 1 1655East13thStreet SVE.13thSt.LLC 1,038,101
207 251 2 VillaSerena Coolidge-SerenaEquities,LLC 999,068
208 271 2 LakeVillageApartments 3750LakeAvenue,Inc. 898,267
209 255 1 AeroPanelBuilding 661MyrtlePropertyCompany,Ltd.(L.P.) 873,730
210 253 2 344East209th StreetScott-CraigAssociatesLLC 855,000
211 254 2 2935HollandAvenue CoreyAssociates,LLC 825,000
212 258 2 SherwoodTownhouses DialRealtyManagementCorporation 696,624
213 256 2 2885BriggsAvenue Ry-BoyAssociates,LLC 680,000
214 260 2 PFI-IgnacioHillsIV ProfessionalInvestorsSecurityFundIV 582,730
215 259 2 116HenwoodPlace L&DRealtyAssociatesLLC 560,000
216 261 1 398ThirdAvenue 398-3rdAvenueRealtyCo. 498,504
217 263 1 SpinCycle173-Milwaukee WentwoodInvestorsFundII,L.P. 334,498
Total 1,919,275,079
</TABLE>
<TABLE>
<CAPTION>
Primary Anticipated
Loan Monthly Mortgage Servicing Net Mortgage Stated Maturity Repayment
No. Payment Rate Fee Rate Rate Interest Calc. Date Date ARD Loan
<S> <C> <C> <C> <C> <C> <C> <C> <C>
1 587,774.49 7.1550 0.05 7.1050 Actual/360 6/11/28 6/11/08 Yes
3 536,131.40 6.7100 0.05 6.6600 Actual/360 9/11/28 9/11/08 Yes
4 643,135.00 8.2500 0.05 8.2000 Actual/360 11/11/23 11/11/08 Yes
5 531,625.00 7.6400 0.05 7.5900 Actual/360 10/11/28 10/11/08 Yes
2 525,302.00 8.0000 0.03 7.9700 Actual/360 7/11/18 7/11/13 Yes
6 523,365.58 7.2750 0.05 7.2250 Actual/360 1/11/26 2/11/08 Yes
7 449,854.20 7.6650 0.05 7.6150 Actual/360 11/11/23 11/11/08 Yes
8 392,454.37 7.5700 0.05 7.5200 Actual/360 11/11/28 11/11/08 Yes
9 363,041.52 6.9400 0.05 6.8900 Actual/360 9/11/28 9/11/08 Yes
10 371,083.60 7.5700 0.05 7.5200 Actual/360 11/11/28 11/11/08 Yes
11 347,896.97 7.4500 0.05 7.4000 Actual/360 10/11/28 10/11/05 Yes
12 326,422.22 7.1500 0.05 7.1000 Actual/360 7/11/24 7/11/08 Yes
13 310,392.03 7.5700 0.05 7.5200 Actual/360 11/11/28 11/11/08 Yes
14 285,741.77 7.2610 0.05 7.2110 Actual/360 1/11/28 1/11/08 Yes
15 261,248.00 7.6000 0.05 7.5500 Actual/360 10/11/28 10/11/08 Yes
16 210,546.08 6.6858 0.05 6.6358 Actual/360 3/11/19 No
17 177,717.07 8.2300 0.05 8.1800 Actual/360 11/11/28 11/11/08 Yes
18 164,373.86 7.4700 0.05 7.4200 Actual/360 11/11/28 5/11/08 Yes
19 194,481.98 8.0880 0.05 8.0380 30/360 7/1/16 No
20 154,995.90 7.4700 0.05 7.4200 Actual/360 11/11/28 5/11/08 Yes
21 132,195.00 7.0500 0.05 7.0000 Actual/360 7/11/28 7/11/08 Yes
22 151,005.25 7.9200 0.05 7.8700 Actual/360 9/11/23 9/11/08 Yes
23 132,574.50 6.6914 0.05 6.6414 Actual/360 3/11/19 No
24 125,192.31 7.5600 0.05 7.5100 Actual/360 10/11/28 10/11/08 Yes
25 148,997.77 8.7829 0.05 8.7329 Actual/360 5/11/23 No
26 108,522.92 6.6891 0.05 6.6391 Actual/360 3/11/19 No
27 105,793.75 7.3700 0.05 7.3200 Actual/360 10/11/28 10/11/08 Yes
28 106,184.60 7.4700 0.05 7.4200 Actual/360 11/11/28 5/11/08 Yes
29 99,311.42 6.6966 0.05 6.6466 Actual/360 3/11/19 No
30 119,259.91 7.8550 0.05 7.8050 30/360 10/11/18 No
31 100,394.48 7.7600 0.05 7.7100 Actual/360 8/11/07 8/11/07 Yes
32 95,138.42 6.6927 0.05 6.6427 Actual/360 3/11/19 No
33 107,061.81 7.5984 0.05 7.5484 Actual/360 4/11/18 No
34 94,516.67 7.7000 0.05 7.6500 Actual/360 10/11/28 10/11/08 Yes
35 90,175.75 6.6965 0.05 6.6465 Actual/360 3/11/19 No
36 86,971.56 7.2100 0.04 7.1700 Actual/360 8/11/28 8/11/08 Yes
37 85,351.05 7.1200 0.05 7.0700 Actual/360 9/11/28 9/11/08 Yes
38 87,401.81 7.5000 0.05 7.4500 Actual/360 10/11/28 10/11/08 Yes
39 94,481.92 7.2000 0.05 7.1500 Actual/360 8/11/18 8/11/08 Yes
40 74,488.67 7.2600 0.05 7.2100 Actual/360 8/11/28 7/11/08 Yes
41 87,504.94 7.7189 0.05 7.6689 30/360 8/11/18 No
42 69,654.97 7.3600 0.05 7.3100 Actual/360 10/11/28 10/11/13 Yes
43 73,704.09 7.4700 0.05 7.4200 Actual/360 9/11/23 9/11/05 Yes
44 72,480.49 7.9500 0.05 7.9000 Actual/360 10/11/28 10/11/08 Yes
45 64,493.59 7.0450 0.05 6.9950 Actual/360 6/11/28 6/11/03 Yes
46 62,624.44 7.1200 0.05 7.0700 Actual/360 8/11/28 8/11/08 Yes
47 68,374.74 8.3700 0.05 8.3200 Actual/360 10/11/28 10/11/08 Yes
48 60,832.00 7.5000 0.05 7.4500 Actual/360 11/11/28 11/11/08 Yes
49 58,228.50 7.8500 0.05 7.8000 Actual/360 11/11/28 11/11/08 Yes
50 54,411.41 7.2200 0.05 7.1700 Actual/360 8/11/28 8/11/13 Yes
51 66,612.31 7.7063 0.05 7.6563 Actual/360 2/11/18 No
52 54,137.62 6.8000 0.05 6.7500 Actual/360 7/11/23 7/11/08 Yes
53 60,796.84 8.4449 0.05 8.3949 Actual/360 6/11/23 No
54 52,494.94 7.5900 0.04 7.5500 Actual/360 10/11/28 10/11/08 Yes
55 46,102.01 6.9000 0.08 6.8200 Actual/360 11/11/08 No
56 81,811.82 8.2000 0.05 8.1500 Actual/360 9/11/28 9/11/05 Yes
57 47,764.43 7.1500 0.05 7.1000 Actual/360 8/11/23 8/11/08 Yes
58 $48,750.92 8.0700 0.05 8.0200 Actual/360 10/11/28 10/11/08 Yes
59 56,105.35 7.3500 0.05 7.3000 Actual/360 8/11/18 No
60 48,045.79 7.8500 0.05 7.8000 Actual/360 10/11/23 10/11/08 Yes
61 44,051.00 7.5000 0.05 7.4500 Actual/360 11/11/28 11/11/08 Yes
62 45,330.54 7.9100 0.05 7.8600 Actual/360 10/11/28 10/11/08 Yes
63 40,564.95 7.1600 0.05 7.1100 Actual/360 7/11/28 7/11/08 Yes
64 43,175.32 7.2000 0.05 7.1500 Actual/360 7/11/23 7/11/08 Yes
65 38,237.61 6.9100 0.06 6.8500 Actual/360 7/11/28 7/11/08 Yes
66 39,756.33 7.0000 0.05 6.9500 Actual/360 9/11/23 9/11/08 Yes
67 41,090.82 8.0000 0.05 7.9500 Actual/360 11/11/28 11/11/08 Yes
68 37,930.92 7.3600 0.05 7.3100 Actual/360 6/11/28 6/11/08 Yes
69 39,258.05 7.4200 0.05 7.3700 Actual/360 7/11/23 7/11/08 Yes
70 38,616.61 7.3400 0.05 7.2900 Actual/360 7/11/23 7/11/08 Yes
71 37,466.63 7.7100 0.05 7.6600 Actual/360 8/11/28 8/11/05 Yes
72 35,915.11 7.3750 0.05 7.3250 Actual/360 10/11/28 10/11/08 Yes
73 37,955.26 7.3600 0.05 7.3100 Actual/360 7/11/23 7/11/05 Yes
74 40,627.73 8.0200 0.05 7.9700 Actual/360 8/11/18 8/11/08 Yes
75 33,136.05 7.3700 0.05 7.3200 Actual/360 9/11/28 9/11/08 Yes
76 36,288.00 8.4300 0.05 8.3800 Actual/360 6/11/28 6/11/05 Yes
77 34,074.39 8.1000 0.05 8.0500 Actual/360 11/11/28 11/11/08 Yes
78 31,442.53 7.2700 0.05 7.2200 Actual/360 8/11/28 8/11/08 Yes
79 32,151.57 7.5900 0.08 7.5100 Actual/360 10/11/28 10/11/08 Yes
80 39,295.26 8.5700 0.1 8.4700 Actual/360 10/11/18 No
81 31,389.75 7.5900 0.05 7.5400 Actual/360 8/11/28 8/11/08 Yes
82 36,412.45 8.9000 0.1 8.8000 Actual/360 10/11/24 10/11/08 Yes
83 32,144.46 7.3700 0.1 7.2700 Actual/360 9/11/23 9/11/08 Yes
84 29,882.30 7.2200 0.05 7.1700 Actual/360 8/11/28 8/11/03 Yes
85 29,813.24 7.4700 0.05 7.4200 Actual/360 11/11/28 5/11/08 Yes
86 28,634.01 7.2200 0.05 7.1700 Actual/360 8/11/28 8/11/08 Yes
87 30,084.35 8.0000 0.05 7.9500 Actual/360 10/11/28 10/11/08 Yes
88 29,572.88 7.9100 0.05 7.8600 Actual/360 10/11/28 10/11/08 Yes
89 28,486.44 7.5600 0.05 7.5100 Actual/360 5/11/28 5/11/08 Yes
90 30,302.49 7.7840 0.05 7.7340 Actual/360 11/11/23 11/11/08 Yes
91 29,585.67 7.5100 0.05 7.4600 Actual/360 10/11/23 10/11/05 Yes
92 27,762.88 6.8000 0.05 6.7500 Actual/360 7/11/23 7/11/08 Yes
93 28,110.61 7.9100 0.05 7.8600 Actual/360 10/11/28 10/11/08 Yes
94 26,648.20 7.3600 0.05 7.3100 Actual/360 7/11/28 7/11/08 Yes
95 26,117.48 7.2200 0.05 7.1700 Actual/360 8/11/28 8/11/08 Yes
96 26,000.07 7.2800 0.05 7.2300 Actual/360 7/11/28 7/11/08 Yes
97 27,687.78 7.4900 0.1 7.3900 Actual/360 6/11/23 6/11/08 Yes
98 25,680.67 6.8000 0.05 6.7500 Actual/360 7/11/23 7/11/08 Yes
99 25,175.11 7.3750 0.05 7.3250 Actual/360 10/11/28 10/11/08 Yes
100 24,382.80 6.4579 0.05 6.4079 Actual/360 4/11/23 No
101 24,600.17 7.3800 0.05 7.3300 Actual/360 10/11/28 10/11/08 Yes
102 24,359.00 6.8300 0.1 6.7300 Actual/360 10/11/23 10/11/08 Yes
103 26,544.68 8.1700 0.05 8.1200 Actual/360 6/11/08 No
104 24,601.76 7.6000 0.1 7.5000 Actual/360 8/11/23 8/11/08 Yes
105 23,318.93 7.8300 0.05 7.7800 Actual/360 10/11/28 10/11/08 Yes
106 24,465.31 7.8000 0.05 7.7500 Actual/360 8/11/23 8/11/08 Yes
107 21,332.68 7.0200 0.05 6.9700 Actual/360 9/11/28 9/11/08 Yes
108 24,794.09 8.2300 0.05 8.1800 Actual/360 9/11/23 9/11/08 Yes
109 23,689.55 7.7000 0.05 7.6500 Actual/360 7/11/23 7/11/08 Yes
110 22,123.28 7.9100 0.05 7.8600 Actual/360 10/11/28 10/11/08 Yes
111 21,934.13 7.9100 0.05 7.8600 Actual/360 10/11/28 10/11/08 Yes
112 22,601.30 8.2800 0.05 8.2300 Actual/360 10/11/28 10/11/08 Yes
113 20,312.00 7.4300 0.05 7.3800 Actual/360 10/11/28 10/11/08 Yes
114 19,612.19 7.0600 0.05 7.0100 Actual/360 10/11/28 10/11/08 Yes
115 $20,113.11 7.4700 0.05 7.4200 Actual/360 10/11/28 10/11/08 Yes
116 19,131.33 6.3447 0.05 6.2947 Actual/360 5/11/18 No
117 19,968.59 7.2000 0.05 7.1500 Actual/360 6/11/23 6/11/08 Yes
118 19,743.42 7.8100 0.05 7.7600 Actual/360 11/11/28 11/11/08 Yes
119 19,417.06 7.6000 0.05 7.5500 Actual/360 3/11/28 3/11/08 Yes
121 19,599.31 7.8100 0.05 7.7600 Actual/360 11/11/28 11/11/08 Yes
120 19,599.31 7.8100 0.05 7.7600 Actual/360 11/11/28 11/11/08 Yes
122 14,952.13 6.5024 0 6.5024 30/360 1/6/19 No
123 18,250.00 7.4678 0.05 7.4178 Actual/360 6/11/16 No
124 17,139.27 7.3000 0.05 7.2500 Actual/360 8/11/28 8/11/08 Yes
125 18,257.05 7.9500 0.05 7.9000 Actual/360 8/11/28 8/11/08 Yes
126 13,666.60 6.3828 0 6.3828 30/360 12/6/18 No
127 18,042.01 7.9100 0.05 7.8600 Actual/360 10/11/28 10/11/08 Yes
128 17,358.27 6.8100 0 6.8100 30/360 3/6/19 No
129 17,293.51 7.8100 0.05 7.7600 Actual/360 11/11/28 11/11/08 Yes
130 18,370.88 8.2200 0.05 8.1700 Actual/360 4/11/26 10/11/08 Yes
131 15,935.04 6.9800 0.05 6.9300 Actual/360 9/11/28 9/11/08 Yes
132 13,261.20 6.4925 0 6.4925 30/360 2/6/19 No
133 16,754.33 7.9100 0.05 7.8600 Actual/360 10/11/28 10/11/08 Yes
134 16,572.95 7.8100 0.05 7.7600 Actual/360 11/11/28 11/11/08 Yes
135 12,887.61 6.5122 0 6.5122 30/360 1/6/19 No
136 15,332.86 7.0200 0.05 6.9700 Actual/360 9/11/28 9/11/08 Yes
137 18,549.45 8.6500 0.05 8.6000 Actual/360 10/11/23 10/11/08 Yes
138 12,818.66 6.6112 0 6.6112 30/360 12/6/18 No
139 16,212.67 7.8100 0.05 7.7600 Actual/360 11/11/28 11/11/08 Yes
140 16,212.67 7.8100 0.05 7.7600 Actual/360 11/11/28 11/11/08 Yes
141 15,616.42 7.4700 0.05 7.4200 Actual/360 10/11/28 10/11/08 Yes
142 16,072.00 7.7840 0.05 7.7340 Actual/360 11/11/28 11/11/08 Yes
143 15,889.32 7.1400 0.1 7.0400 Actual/360 9/11/23 9/11/08 Yes
144 12,301.14 6.4451 0 6.4451 30/360 1/6/19 No
145 12,336.98 6.5173 0 6.5173 30/360 1/6/19 No
146 16,195.18 7.5600 0.1 7.4600 Actual/360 9/11/23 9/11/13 Yes
147 12,187.12 6.5161 0 6.5161 30/360 2/6/19 No
148 12,089.29 6.4652 0 6.4652 30/360 1/6/19 No
149 19,898.50 8.0100 0.05 7.9600 Actual/360 10/11/05 No
150 18,077.24 8.0700 0.05 8.0200 Actual/360 9/11/18 No
151 11,684.20 6.3995 0 6.3995 30/360 1/6/19 No
152 18,030.23 9.4000 0.05 9.3500 Actual/360 10/11/24 10/11/08 Yes
153 13,999.57 7.0200 0.05 6.9700 Actual/360 9/11/28 9/11/08 Yes
154 11,519.56 6.3965 0 6.3965 30/360 1/6/19 No
155 11,857.71 6.6271 0 6.6271 30/360 12/6/18 No
156 14,819.18 7.9100 0.05 7.8600 Actual/360 10/11/28 10/11/08 Yes
157 11,266.33 6.4814 0 6.4814 30/360 12/6/18 No
158 11,324.13 6.5416 0 6.5416 30/360 1/6/19 No
159 14,600.93 7.9100 0.05 7.8600 Actual/360 10/11/28 10/11/08 Yes
160 13,238.96 6.9500 0.05 6.9000 Actual/360 8/11/28 8/11/08 Yes
161 14,910.16 7.6000 0.1 7.5000 Actual/360 8/11/23 8/11/08 Yes
162 16,091.07 8.4900 0.05 8.4400 Actual/360 6/11/23 6/11/08 Yes
163 14,008.25 6.9000 0.05 6.8500 Actual/360 7/11/23 7/11/08 Yes
164 10,883.73 6.3975 0 6.3975 30/360 12/6/18 No
165 13,872.00 7.7840 0.05 7.7340 Actual/360 11/11/28 11/11/08 Yes
166 13,668.30 7.0800 0.12 6.9600 Actual/360 9/11/23 9/11/08 Yes
167 13,402.47 7.8100 0.05 7.7600 Actual/360 11/11/28 11/11/08 Yes
168 13,364.93 7.1400 0.05 7.0900 Actual/360 9/11/08 No
169 13,258.36 7.8100 0.05 7.7600 Actual/360 11/11/28 11/11/08 Yes
170 13,313.25 7.9100 0.05 7.8600 Actual/360 10/11/28 10/11/08 Yes
171 12,716.22 7.4700 0.05 7.4200 Actual/360 10/11/28 10/11/08 Yes
172 $10,201.59 6.5343 0 6.5343 30/360 1/6/19 No
173 9,942.34 6.3818 0 6.3818 30/360 1/6/19 No
174 12,833.28 7.7000 0.05 7.6500 Actual/360 10/11/28 10/11/08 Yes
175 15,246.92 8.1700 0.05 8.1200 Actual/360 10/11/18 10/11/08 Yes
176 12,771.26 7.6500 0.05 7.6000 Actual/360 8/11/28 8/11/08 Yes
177 10,028.65 6.5175 0 6.5175 30/360 12/6/18 No
178 12,804.40 7.8100 0.05 7.7600 Actual/360 11/11/28 11/11/08 Yes
179 12,501.77 7.8100 0.05 7.7600 Actual/360 11/11/28 11/11/08 Yes
180 14,055.13 7.6500 0.05 7.6000 Actual/360 8/11/18 8/11/08 Yes
181 8,920.68 6.3690 0 6.3690 30/360 1/6/19 No
182 12,690.13 8.3200 0.05 8.2700 Actual/360 10/11/23 10/11/08 Yes
183 12,291.67 6.9380 0.05 6.8880 Actual/360 9/11/17 No
184 12,694.53 7.3000 0.12 7.1800 Actual/360 4/11/18 4/11/08 Yes
185 11,384.89 7.8100 0.05 7.7600 Actual/360 11/11/28 11/11/08 Yes
186 11,154.31 7.8100 0.05 7.7600 Actual/360 11/11/28 11/11/08 Yes
187 10,988.58 7.8100 0.05 7.7600 Actual/360 11/11/28 11/11/08 Yes
188 10,836.43 7.1400 0.05 7.0900 Actual/360 9/11/08 No
189 8,091.29 6.5122 0 6.5122 30/360 2/6/19 No
190 10,410.53 7.9100 0.05 7.8600 Actual/360 10/11/28 10/11/08 Yes
191 7,733.41 6.4003 0 6.4003 30/360 2/6/19 No
192 10,437.41 8.0200 0.05 7.9700 Actual/360 9/11/23 9/11/08 Yes
193 9,741.23 7.9100 0.05 7.8600 Actual/360 10/11/28 10/11/08 Yes
194 12,599.20 7.6100 0.05 7.5600 Actual/360 7/11/13 No
195 9,863.60 6.6730 0.05 6.6230 Actual/360 3/11/16 No
196 9,476.00 7.9300 0.05 7.8800 Actual/360 7/11/28 7/11/08 Yes
197 9,348.38 7.9100 0.05 7.8600 Actual/360 10/11/28 10/11/08 Yes
198 9,223.20 7.8100 0.05 7.7600 Actual/360 11/11/28 11/11/08 Yes
199 8,442.13 7.0700 0.05 7.0200 Actual/360 6/11/28 6/11/08 Yes
200 9,087.62 7.2100 0.05 7.1600 Actual/360 10/11/23 10/11/08 Yes
201 8,867.89 7.5000 0.05 7.4500 Actual/360 10/11/23 10/11/08 Yes
202 9,421.34 8.2000 0.12 8.0800 Actual/360 6/11/23 6/11/08 Yes
203 8,155.28 7.9100 0.05 7.8600 Actual/360 10/11/28 10/11/08 Yes
204 8,309.01 8.2500 0.05 8.2000 Actual/360 11/11/28 11/11/08 Yes
205 7,298.66 7.4400 0.05 7.3900 Actual/360 7/11/28 7/11/08 Yes
206 7,264.71 7.4900 0.05 7.4400 Actual/360 8/11/28 8/11/08 Yes
207 7,389.91 7.5000 0.05 7.4500 Actual/360 10/11/23 10/11/08 Yes
208 6,886.83 7.9000 0.05 7.8500 Actual/360 9/11/08 No
209 7,373.40 8.1000 0.05 8.0500 Actual/360 10/11/18 10/11/08 Yes
210 6,160.81 7.8100 0.05 7.7600 Actual/360 11/11/28 11/11/08 Yes
211 5,944.64 7.8100 0.05 7.7600 Actual/360 11/11/28 11/11/08 Yes
212 4,859.21 7.4700 0.05 7.4200 Actual/360 10/11/28 10/11/08 Yes
213 4,899.83 7.8100 0.05 7.7600 Actual/360 11/11/28 11/11/08 Yes
214 4,241.33 7.9100 0.05 7.8600 Actual/360 10/11/28 10/11/08 Yes
215 4,035.15 7.8100 0.05 7.7600 Actual/360 11/11/28 11/11/08 Yes
216 4,556.90 7.1200 0.05 7.0700 Actual/360 10/11/13 No
217 2,841.19 9.1300 0.05 9.0800 Actual/360 9/11/23 9/11/08 Yes
</TABLE>
<TABLE>
<CAPTION>
CSFB
Loan Control Loan
No. No. Group Property Name
<S> <C> <C> <C>
1 5 2 Intel/ReichmannPortfolioSummary
3 7 2 ButeraPortfolioSummary
4 8 2 PatriotAmericanSummary
5 10 1 L'EnfantPlazaSummary
2 6 1 180 WaterStreet
6 11 2 260-261MadisonAvenue
7 12 2 TridentCenter
8 2 2 ThurmanMultifamilyPortfolioSummary
9 13 2 KollCorporatePlaza
10 3 2 PinstripeMultifamilyPortfolioSummary
11 14 1 PearlHighlandsCenter
12 15 2 1133Connecticut Avenue
13 4 2 GardenVariety ApartmentsPortfolioSummary
14 16 1 DonatelliPortfolioSummary
15 18 2 CamcoSummary
16 19 1 Accor-TexasSummary
17 20 1 8484WilshireBoulevard
18 21 2 CourthouseSquareApartments
19 273 1 UnitedArtists-5TheatersSummary
20 22 2 RamblewoodVillageApartments
21 24 1 LipkinPortfolioSummary
22 23 2 GrandUnionSummary
23 25 1 Accor-FloridaSummary
24 26 2 SummitPortfolioSummary
25 28 1 AmericanRestaurantGroup,Inc.Summary
26 29 1 Accor-MidwestSummary
27 30 2 VentanaCanyonApartments
28 31 2 EnglishVillageApartments
29 32 1 Accor-EastSummary
30 33 1 Cinemark-Austin
31 34 1 TownandCountryShoppingCenter
32 36 1 Accor-SoutheastSummary
33 37 1 RegalCinema
34 38 1 SouthsideMall
35 39 1 Accor-WestSummary
36 41 2 McKnightPlaceExtendedCare
37 42 1 TamarusIandIIApartments
38 43 2 Shaw'sShoppingCenter
39 44 1 ThePradaBuilding
40 46 2 St.LandryPlazaShoppingCenter
41 47 1 GardenRidge
42 48 1 JewelryTheatreBuilding
43 50 1 HolidayInn-FarmingtonHills
44 79 2 WhisperingPalms-ViscayaApart
45 51 1 1000SylvanAvenue
46 52 2 K-MartPlaza
47 53 2 LincolnPlazaHotel
48 55 2 IslandWalkShoppingCenter
49 266 2 ForestRidgeShoppingCenter
50 56 1 AgawanStop&Shop
51 58 1 Hoyt's-Bellingham
52 60 2 StirlingIndustrialPark
53 999 1 PamidaSummary
54 61 2 BloomfieldMultiSummary
55 65 2 WendellTerrace
56 67 1 WashgintonHUDSummary
57 888 1 BestBuySummary
58 69 2 NorthpointeShoppingCenter
59 70 1 U.S.EquitiesIISummary
60 71 2 East138thStreet
61 58 2 St.CharlesPlaza
62 75 2 PFI-IgnacioGardens
63 77 2 StateFarmBuilding
64 78 2 TimeWarnerBuilding
65 82 2 SunsetPlazaShoppingCenter
66 84 2 CentroPlaza
67 270 2 SherwoodForestdbaGrandOaks
68 86 1 ShoppesofWiltonManor
69 87 1 EssexPortfolioSummary
70 88 2 RoyalDaneMall
71 89 1 29JohnStreet
72 268 2 WarringtonApartments
73 90 1 PlazaDiamondBar
74 92 2 RioDelOroRacquetClub
75 93 2 CenturySquareApartments
76 95 1 East-West4LLCSummary
77 97 1 AlamedaOffice
78 98 2 JeffersonPlazaSummary
79 80 2 Bloomfield-Lex
80 99 1 CarrollPoolSummary
81 265 2 CopacabanaMobilehomePark
82 100 1 BudgetedSt.Charles
83 101 2 942HydePark
84 102 1 IGInternationalBuilding
85 104 2 HomesteadGardensApartments
86 105 2 WestwoodPortfolioSummary
87 106 2 CherryHillPlaza
88 110 2 PFI-LincolnVilla
89 107 1 BaysceneMobilehomePark
90 96 2 EdgewaterSquare
91 108 1 EconomicPressBuilding
92 109 1 CommerceSecurityCenter
93 111 2 PFI-Northgate
94 112 2 DerrerFieldEstatesApartments
95 113 1 CedarwoodValleyOfficePark
96 116 1 OneFinderneAvenue
97 117 1 BestWesternChateauSuiteHotel
98 118 2 AffordableWarehouses
99 267 2 Burke-LewisApartments
100 122 1 RiteAid-Burton
101 123 2 AMPBuilding
102 124 1 HolidayInnExpress
103 125 2 AnchorageTradeCenterBuilding
104 128 1 QualityInn-Nautilus
105 129 2 RainTreePlaza
106 130 1 ComfortInn-Greensboro
107 131 2 1270GerardAvenue
108 133 1 SuburbanLodgeofBaymeadows
109 134 1 ComfortInnBLR
110 135 2 PFI-Creekside
111 132 2 PFI-Fairway
112 137 1 FranklinCourt
113 139 1 WestLancasterPlaza
114 140 1 733YonersAvenue
115 142 2 BariManor
116 144 1 Eckerd's-Berwick#5923
117 145 1 244West39thStreet
118 143 2 690GerardAvenue
119 147 2 LakePointeApartments
121 146 2 2300GrandConcourse
120 148 2 230East167thStreet
122 149 1 CVS-ForestHill
123 160 1 OfficeDepot-Dallas
124 154 1 8000NorthFederalHighway
125 155 1 PortofinoBeachHotel
126 156 1 CVS-Auburn
127 158 2 PFI-IgnacioPines
128 159 1 CVS-Montgomery
129 157 2 984SheridanAvenue
130 162 2 ShopRiteCenter
131 163 2 111East167thStreet
132 164 1 CVS-Cranston
133 152 2 PFI-OakHillApartments
134 168 2 176East176th
135 166 1 CVS-Bessemer
136 167 2 2585-93GrandConcourse
137 170 1 2899-2901ThirdAvenue
138 169 1 CVS-Middlefield
140 153 2 215MountHopePlace
139 161 2 1210ShermanAvenue
141 165 2 HudsonViesEstates
142 173 1 BelleairBazaar
143 171 2 ChateauThierryApartments
144 172 1 CVS-Colonial Heights
145 175 1 CVS-Augusta
146 176 1 SafeguardSelfStorage
147 177 1 CVS-NewHaven#6496
148 178 1 CVS-Huntersville
149 272 1 BuenaParkManorMHP
150 179 1 ComfortInn-Petersburg
151 180 1 CVS-Ringgold
152 181 2 ContinentalPak
153 183 2 2544ValentineAvenue
154 184 1 CVS-Cleveland
155 186 1 CVS-Madison
156 185 2 PFI-Westview
157 188 1 CVS-Painesville
158 189 1 CVS-Pelzer
159 211 2 PFI-IgnacioHillsIII
160 191 1 WalgreensPlaza
161 193 1 BestWestern-WrightPatterson
162 195 2 ClarionHotel
163 194 2 7600MedleyIndustrialBuilding
164 197 1 CVS-Smyrna
165 199 1 CitrusPlaza
166 200 2 CaneVillage/IndianSummerApartments
167 198 2 2908-10ValentineAvenue
168 202 1 416-418Knickerbocker
169 196 2 2MinervaPlace
170 201 2 PFI-NorthernApartments
171 203 2 SpartaGreenTownhouses
172 204 1 CVS-Owensboro
173 205 1 CVS-Barnwell
174 207 2 48HillStreet
175 206 1 GalaxyHotel
176 208 2 ElmwoodGalleria
177 209 1 CVS-Marysville
178 182 2 1791GrandConcourse
179 187 2 2505OlinvilleAvenue
180 212 1 EconoLodge-Biloxi
181 217 1 CVS-Bedford
182 220 1 IngramParkPlazaShoppingCenter
183 221 1 RiteAid-Detroit
184 222 2 PowellStreetWarehouses
185 218 2 3041HollandAvenue
186 214 2 3031HollandAvenue
187 219 2 1240ShermanAvenue
188 226 1 2174PelhamAssociates
189 227 1 CVS-Cairo
190 229 2 PFI-Strawberry
191 228 1 CVS-Hopewell
192 233 1 54-64BroadStreet
193 236 2 PFI-ViaCasitas
194 237 1 BestWestern-Celebration
195 237 1 RiteAid-Dearborn
196 239 1 GatewayRetailCenter
197 246 2 PFI-IgnacioHillsI
198 230 2 1945LoringPlaceSouth
199 240 2 ThreePinesApartments
200 241 1 363BloomfieldAvenue
201 248 2 ParkerPlazaShoppingCenter
202 243 1 Nature'sEdgeAssistedLivingFacility
203 244 2 PFI-CountryClub
204 245 2 202IndustrialLoop
205 249 2 StongateApartments
206 250 1 1655 East13thStreet
207 251 2 VillaSerena
208 271 2 LakeVillageApartments
209 255 1 AcroPanelBuilding
210 253 2 344East209th
211 254 2 2935HollandAvenue
212 258 2 SherwoodTownhouses
213 256 2 2885BriggsAvenue
214 260 2 PFI-IgnacioHillsIV
215 259 2 116HenwoodPlace
216 261 1 398ThirdAvenue
217 263 1 SpinCycle173-Milwaukee
Remaining
Revised Lockout and Anticipated Original Remaining
Loan Rate after Remaining Yield Remaining Amortization Amortization First P&I
No. ARD Date Lockout Maintenance Term Term Seasoning Term Date Due Date
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
1 9.1550 108 108 115 358 3 355 9/11/98 11
3 8.7100 115 115 118 360 2 358 10/11/98 11
4 10.2500 116 116 120 300 0 300 12/11/98 11
5 9.6400 116 116 119 360 1 359 11/11/98 11
2 10.0000 169 169 176 240 4 236 8/11/98 11
6 9.2750 104 104 111 336 10 326 2/11/98 11
7 9.6650 117 117 120 300 0 300 12/11/98 11
8 9.5700 113 113 120 360 0 360 12/11/98 11
9 8.9400 111 111 118 360 2 358 10/11/98 11
10 9.5700 113 113 120 360 0 360 12/11/98 11
11 9.4500 76 76 83 360 1 359 11/11/98 11
12 9.1500 109 109 116 312 4 308 8/11/98 11
13 9.5700 113 113 120 360 0 360 12/11/98 11
14 9.2610 106 106 110 360 10 350 2/11/98 11
15 9.6000 115 115 119 360 2 358 10/11/98 11
16 240 240 244 291 3 288 9/11/98 11
17 10.2300 118 118 120 360 0 360 12/11/98 11
18 9.4700 110 110 114 360 1 359 11/11/98 11
19 0 211 212 216 0 216 1/1/99 1
20 9.4700 110 110 114 360 1 359 11/11/98 11
21 9.0500 113 113 116 360 4 356 8/11/98 11
22 9.9200 111 111 118 300 2 298 10/11/98 11
23 240 240 244 297 3 294 9/11/98 11
24 9.5600 112 112 119 360 1 359 11/11/98 11
25 290 290 294 299 5 294 7/11/98 11
26 240 240 244 295 3 292 9/11/98 11
27 9.3700 112 112 119 360 1 359 11/11/98 11
28 9.4700 110 110 114 360 1 359 11/11/98 11
29 240 240 244 303 3 300 9/11/98 11
30 235 235 239 240 1 239 11/11/98 11
31 9.7600 101 101 105 360 1 359 11/11/98 11
32 240 240 244 298 3 295 9/11/98 11
33 226 226 233 238 5 233 7/11/98 11
34 9.7000 112 112 119 360 1 359 11/11/98 11
35 240 240 244 303 3 300 9/11/98 11
36 9.2100 110 110 117 360 3 357 9/11/98 11
37 9.1200 34 111 118 360 2 358 10/11/98 11
38 9.5000 112 112 119 360 1 359 11/11/98 11
39 9.2000 110 110 117 240 3 237 9/11/98 11
40 9.2600 113 113 116 360 3 357 9/11/98 11
41 233 233 237 240 3 237 9/11/98 11
42 9.3600 177 177 179 360 1 359 11/11/98 11
43 9.4700 78 78 82 300 2 298 10/11/98 11
44 9.9500 112 112 119 360 1 359 11/11/98 11
45 9.0450 52 52 55 360 5 355 7/11/98 11
46 9.1200 113 113 117 360 3 357 9/11/98 11
47 10.3700 112 112 119 360 1 359 11/11/98 11
48 9.5000 118 118 120 360 0 360 12/11/98 11
49 9.8500 113 113 120 360 0 360 12/11/98 11
50 9.2200 170 170 177 360 3 357 9/11/98 11
51 227 227 231 235 4 231 8/11/98 11
52 8.8000 112 112 116 300 4 296 8/11/98 11
53 291 291 295 299 4 295 8/11/98 11
54 9.5900 117 117 119 360 1 359 11/11/98 11
55 116 116 120 360 0 360 12/11/98 11
56 10.2000 80 80 82 360 2 358 10/11/98 11
57 9.1500 115 115 117 300 3 297 9/11/98 11
58 10.0700 112 112 119 360 1 359 11/11/98 11
59 236 236 237 240 3 237 9/11/98 11
60 9.8500 112 112 119 300 1 299 11/11/98 11
61 9.5000 118 118 120 360 0 360 12/11/98 11
62 9.9100 112 112 119 360 1 359 11/11/98 11
63 9.1600 109 109 116 360 4 356 8/11/98 11
64 9.2000 109 109 116 300 4 296 8/11/98 11
65 8.9100 109 109 116 360 4 356 8/11/98 11
66 9.0000 111 111 118 300 2 298 10/11/98 11
67 10.0000 113 113 120 360 0 360 12/11/98 11
68 9.3600 112 112 115 360 5 355 7/11/98 11
69 9.4200 109 109 116 300 4 296 8/11/98 11
70 9.3400 112 112 116 300 4 296 8/11/98 11
71 9.7100 79 79 81 360 3 357 9/11/98 11
72 9.3750 112 112 119 360 1 359 11/11/98 11
73 9.3600 73 73 80 300 4 296 8/11/98 11
74 10.0200 110 110 117 240 3 237 9/11/98 11
75 9.3700 111 111 118 360 2 358 10/11/98 11
76 10.4300 42 42 79 360 5 355 7/11/98 11
77 10.1000 116 116 120 360 0 360 12/11/98 11
78 9.2700 115 115 117 360 3 357 9/11/98 11
79 9.5900 117 117 119 360 1 359 11/11/98 11
80 232 232 239 240 1 239 11/11/98 11
81 9.5900 110 110 117 360 3 357 9/11/98 11
82 10.9000 115 115 119 312 1 311 11/11/98 11
83 9.3700 114 114 118 300 2 298 10/11/98 11
84 9.2200 54 54 57 360 3 357 9/11/98 11
85 9.4700 110 110 114 360 1 359 11/11/98 11
86 9.2200 115 115 117 360 3 357 9/11/98 11
87 10.0000 117 117 119 360 1 359 11/11/98 11
88 9.9100 112 112 119 360 1 359 11/11/98 11
89 9.5600 107 107 114 360 6 354 6/11/98 11
90 9.7840 118 118 120 300 0 300 12/11/98 11
91 9.5100 76 76 83 300 1 299 11/11/98 11
92 8.8000 112 112 116 300 4 296 8/11/98 11
93 9.9100 112 112 119 360 1 359 11/11/98 11
94 9.3600 109 109 116 360 4 356 8/11/98 11
95 9.2200 113 113 117 360 3 357 9/11/98 11
96 9.2800 114 114 116 360 4 356 8/11/98 11
97 9.4900 111 111 115 300 5 295 7/11/98 11
98 8.8000 112 112 116 300 4 296 8/11/98 11
99 9.3750 112 112 119 360 1 359 11/11/98 11
100 289 289 293 297 4 293 8/11/98 11
101 9.3800 117 117 119 360 1 359 11/11/98 11
102 8.8300 115 115 119 300 1 299 11/11/98 11
103 108 108 115 336 5 331 7/11/98 11
104 9.6000 113 113 117 300 3 297 9/11/98 11
105 9.8300 112 112 119 360 1 359 11/11/98 11
106 9.8000 110 110 117 300 3 297 9/11/98 11
107 9.0200 116 116 118 360 2 358 10/11/98 11
108 10.2300 111 111 118 300 2 298 10/11/98 11
109 9.7000 109 109 116 300 4 296 8/11/98 11
110 9.9100 112 112 119 360 1 359 11/11/98 11
111 9.9100 112 112 119 360 1 359 11/11/98 11
112 10.2800 115 115 119 360 1 359 11/11/98 11
113 9.4300 115 115 119 360 1 359 11/11/98 11
114 9.0600 115 115 119 360 1 359 11/11/98 11
115 9.4700 117 117 119 360 1 359 11/11/98 11
116 230 230 234 263 3 260 9/11/98 11
117 9.2000 111 111 115 300 5 295 7/11/98 11
118 9.8100 118 118 120 360 0 360 12/11/98 11
119 9.6000 110 110 112 360 8 352 4/11/98 11
121 9.8100 118 118 120 360 0 360 12/11/98 11
120 9.8100 118 118 120 360 0 360 12/11/98 11
122 238 238 242 246 0 246 2/6/99 6
123 207 207 211 212 1 211 11/11/98 11
124 9.3000 115 115 117 360 3 357 9/11/98 11
125 9.9500 115 115 117 360 3 357 9/11/98 11
126 237 237 241 246 0 246 1/6/99 6
127 9.9100 112 112 119 360 1 359 11/11/98 11
128 240 240 244 246 0 246 4/6/99 6
129 9.8100 118 118 120 360 0 360 12/11/98 11
130 10.2200 112 112 119 330 1 329 11/11/98 11
131 8.9800 116 116 118 360 2 358 10/11/98 11
132 239 239 243 245 0 245 3/6/99 6
133 9.9100 112 112 119 360 1 359 11/11/98 11
134 9.8100 118 118 120 360 0 360 12/11/98 11
135 238 238 242 246 0 246 2/6/99 6
136 9.0200 116 116 118 360 2 358 10/11/98 11
137 10.6500 112 112 119 300 1 299 11/11/98 11
138 237 237 241 247 0 247 12/6/98 6
140 9.8100 118 118 120 360 0 360 12/11/98 11
139 9.8100 118 118 120 360 0 360 12/11/98 11
141 9.4700 117 117 119 360 1 359 11/11/98 11
142 9.7840 118 118 120 360 0 360 12/11/98 11
143 9.1400 114 114 118 300 2 298 10/11/98 11
144 238 238 242 247 0 247 1/6/99 6
145 238 238 242 247 0 247 1/6/99 6
146 9.5600 171 171 178 300 2 298 10/11/98 11
147 239 239 243 246 0 246 3/6/99 6
148 238 238 242 246 0 246 2/6/99 6
149 76 76 83 192 1 191 11/11/98 11
150 231 231 238 240 2 238 10/11/98 11
151 238 238 242 247 0 247 1/6/99 6
152 11.4000 112 112 119 312 1 311 11/11/98 11
153 9.0200 116 116 118 360 2 358 10/11/98 11
154 238 238 242 246 0 246 2/6/99 6
155 237 237 241 247 0 247 12/6/98 6
156 9.9100 112 112 119 360 1 359 11/11/98 11
157 237 237 241 247 0 247 12/6/98 6
158 238 238 242 246 0 246 2/6/99 6
159 9.9100 112 112 119 360 1 359 11/11/98 11
160 8.9500 114 114 117 360 3 357 9/11/98 11
161 9.6000 113 113 117 300 3 297 9/11/98 11
162 10.4900 113 113 115 300 5 295 7/11/98 11
163 8.9000 112 112 116 300 4 296 8/11/98 11
164 237 237 241 247 0 247 12/6/98 6
165 9.7840 118 118 120 360 0 360 12/11/98 11
166 9.0800 114 114 118 300 2 298 10/11/98 11
167 9.8100 118 118 120 360 0 360 12/11/98 11
168 114 114 118 300 2 298 10/11/98 11
169 9.8100 118 118 120 360 0 360 12/11/98 11
170 9.9100 112 112 119 360 1 359 11/11/98 11
171 9.4700 117 117 119 360 1 359 11/11/98 11
172 238 238 242 245 0 245 3/6/99 6
173 238 238 242 247 0 247 1/6/99 6
174 9.7000 112 112 119 360 1 359 11/11/98 11
175 10.1700 112 112 119 240 1 239 11/11/98 11
176 9.6500 110 110 117 360 3 357 9/11/98 11
177 237 237 241 247 0 247 12/6/98 6
178 9.8100 118 118 120 360 0 360 12/11/98 11
179 9.8100 118 118 120 360 0 360 12/11/98 11
180 9.6500 110 110 117 240 3 237 9/11/98 11
181 238 238 242 247 0 247 1/6/99 6
182 10.3200 112 112 119 300 1 299 11/11/98 11
183 222 222 226 228 2 226 10/11/98 11
184 9.3000 106 106 113 240 7 233 5/11/98 11
185 9.8100 118 118 120 360 0 360 12/11/98 11
186 9.8100 118 118 120 360 0 360 12/11/98 11
187 9.8100 118 118 120 360 0 360 12/11/98 11
188 114 114 118 300 2 298 10/11/98 11
189 239 239 243 246 0 246 3/6/99 6
190 9.9100 112 112 119 360 1 359 11/11/98 11
191 239 239 243 245 0 245 3/6/99 6
192 10.0200 111 111 118 300 2 298 10/11/98 11
193 9.9100 112 112 119 360 1 359 11/11/98 11
194 169 169 176 180 4 176 8/11/98 11
195 204 204 208 213 5 208 7/11/98 11
196 9.9300 114 114 116 360 4 356 8/11/98 11
197 9.9100 112 112 119 360 1 359 11/11/98 11
198 9.8100 118 118 120 360 0 360 12/11/98 11
199 9.0700 110 110 115 360 5 355 7/11/98 11
200 9.2100 112 112 119 300 1 299 11/11/98 11
201 9.5000 112 112 119 300 1 299 11/11/98 11
202 10.2000 111 111 115 300 5 295 7/11/98 11
203 9.9100 112 112 119 360 1 359 11/11/98 11
204 10.2500 113 113 120 360 0 360 12/11/98 11
205 9.4400 114 114 116 360 4 356 8/11/98 11
206 9.4900 113 113 117 360 3 357 9/11/98 11
207 9.5000 112 112 119 300 1 299 11/11/98 11
208 111 111 118 300 2 298 10/11/98 11
209 10.1000 112 112 119 240 1 239 11/11/98 11
210 9.8100 118 118 120 360 0 360 12/11/98 11
211 9.8100 118 118 120 360 0 360 12/11/98 11
212 9.4700 117 117 119 360 1 359 11/11/98 11
213 9.8100 118 118 120 360 0 360 12/11/98 11
214 9.9100 112 112 119 360 1 359 11/11/98 11
215 9.8100 118 118 120 360 0 360 12/11/98 11
216 175 175 179 180 1 179 11/11/98 11
217 11.1300 111 111 118 300 2 298 10/11/98 11
Orig.
Term to
Loan Stated Subject to
No. Maturity Defeasance
<S> <C> <C>
1 358 Yes
3 360 Yes
4 300 Yes
5 360 Yes
2 240 Yes
6 336 Yes
7 300 Yes
8 360 Yes
9 360 Yes
10 360 Yes
11 360 Yes
12 312 Yes
13 360 Yes
14 360 Yes
15 361 Yes
16 247 Yes
17 360 Yes
18 361 Yes
19 211 No
20 361 Yes
21 360 Yes
22 300 Yes
23 247 Yes
24 360 Yes
25 299 Yes
26 247 Yes
27 360 Yes
28 361 Yes
29 247 Yes
30 240 Yes
31 106 Yes
32 247 Yes
33 238 Yes
34 360 Yes
35 247 Yes
36 360 Yes
37 360 No
38 360 Yes
39 240 Yes
40 360 Yes
41 240 Yes
42 360 Yes
43 300 Yes
44 360 Yes
45 360 Yes
46 360 Yes
47 360 Yes
48 360 Yes
49 360 Yes
50 360 Yes
51 235 Yes
52 300 Yes
53 299 Yes
54 360 Yes
55 120 Yes
56 360 Yes
57 300 Yes
58 360 Yes
59 240 Yes
60 300 Yes
61 360 Yes
62 360 Yes
63 360 Yes
64 300 Yes
65 360 Yes
66 300 Yes
67 360 Yes
68 360 Yes
69 300 Yes
70 300 Yes
71 360 Yes
72 360 Yes
73 300 Yes
74 240 Yes
75 360 Yes
76 360 No
77 360 Yes
78 360 Yes
79 360 Yes
80 240 Yes
81 360 Yes
82 312 Yes
83 300 Yes
84 360 Yes
85 361 Yes
86 360 Yes
87 360 Yes
88 360 Yes
89 360 Yes
90 300 Yes
91 300 Yes
92 300 Yes
93 360 Yes
94 360 Yes
95 360 Yes
96 360 Yes
97 300 Yes
98 300 Yes
99 360 Yes
100 297 Yes
101 360 Yes
102 300 Yes
103 120 Yes
104 300 Yes
105 360 Yes
106 300 Yes
107 360 Yes
108 300 Yes
109 300 Yes
110 360 Yes
111 360 Yes
112 360 Yes
113 360 Yes
114 360 Yes
115 360 Yes
116 237 Yes
117 300 Yes
118 360 Yes
119 360 Yes
121 360 Yes
120 360 Yes
122 240 Yes
123 212 Yes
124 360 Yes
125 360 Yes
126 240 Yes
127 360 Yes
128 240 Yes
129 360 Yes
130 330 Yes
131 360 Yes
132 240 Yes
133 360 Yes
134 360 Yes
135 240 Yes
136 360 Yes
137 300 Yes
138 241 Yes
140 360 Yes
139 360 Yes
141 360 Yes
142 360 Yes
143 300 Yes
144 241 Yes
145 241 Yes
146 300 Yes
147 240 Yes
148 240 Yes
149 84 Yes
150 240 Yes
151 241 Yes
152 312 Yes
153 360 Yes
154 240 Yes
155 241 Yes
156 360 Yes
157 241 Yes
158 240 Yes
159 360 Yes
160 360 Yes
161 300 Yes
162 300 Yes
163 300 Yes
164 241 Yes
165 360 Yes
166 300 Yes
167 360 Yes
168 120 Yes
169 360 Yes
170 360 Yes
171 360 Yes
172 239 Yes
173 241 Yes
174 360 Yes
175 240 Yes
176 360 Yes
177 241 Yes
178 360 Yes
179 360 Yes
180 240 Yes
181 241 Yes
182 300 Yes
183 228 Yes
184 240 Yes
185 360 Yes
186 360 Yes
187 360 Yes
188 120 Yes
189 240 Yes
190 360 Yes
191 240 Yes
192 300 Yes
193 360 Yes
194 180 Yes
195 213 Yes
196 360 Yes
197 360 Yes
198 360 Yes
199 360 Yes
200 300 Yes
201 300 Yes
202 300 Yes
203 360 Yes
204 360 Yes
205 360 Yes
206 360 Yes
207 300 Yes
208 120 Yes
209 240 Yes
210 360 Yes
211 360 Yes
212 360 Yes
213 360 Yes
214 360 Yes
215 360 Yes
216 180 Yes
217 300 Yes
</TABLE>
<TABLE>
<CAPTION>
CSFB
Loan Control Control Loan
# # # Group Property Name Address
<S> <C> <C> <C> <C> <C>
1 001 005 2 Intell/Reichmann Portfolio Summary Various Addresses
1 001A 005H 2 Edgewater Plaza One Edgewater Plaza
1 001B 005E 2 Hurstbourne Place 9300 Shelbyville Road
1 001C 005I 2 Intell Tice Boulevard-SONY 123 Tice Boulevard
1 001D 005J 2 One Oxmoor Place 101 Bullitt Lane
1 001E 005G 2 Hurstbourne Plaza 101-315 Whittington Parkway
1 001F 005F 2 Hurstbourne Park Office Building 9200 Shelbyville Road
1 001G 005D 2 Steeplechase Place 9410 Bunsen Parkway
1 001H 005A 2 Hunnington Office Park 9420 Bunsen Parkway
1 001I 005C 2 Two Brittany Place 1938 North Woodlawn Avenue
1 001J 005B 2 One Brittany Place 2024 North Woodlawn Avenue
2 002 006 1 180 Water Street 180 Water Street
3 003 007 2 Butera Portfolio Summary Various Addresses
3 003A 007A 2 Girard Place 602, 620, 630 and 640 East Diamond Avenue
3 003B 007B 2 Patrick Center 30 West Patrick Street
3 003C 007C 2 Deer Park Center 9631-9637 Liberty Road
3 003D 007D 2 Girard Business Center 200-220 Girard Street and 504 East Diamond
Avenue
3 003E 007E 2 Old Courthouse Square 1291 Edwin Miller Boulevard
3 003F 007F 2 Wedgewood Business Park 6900 English Muffin Way
3 003G 007G 2 Georgia Pacific 4451 Georgia Pacific Boulevard
3 003H 007H 2 Gateway West 115 & 125 Airport Drive and
1135 Business Parkway South
3 003I 007I 2 Gateway Center 807 - 831 Russell Avenue
3 003J 007J 2 Westpark 10 North Jefferson Street
3 003K 007K 2 Radtech Building 15 Workmans Mill Court
3 003L 007L 2 Woodlands Business Center 9315 Largo Drive West
3 003M 007M 2 Microlog 20270 Golden Rod Lane
3 003N 007N 2 Thomas AAA 7561 Lindbergh Drive
4 004 008 2 Patriot American Summary Various Addresses
4 004A 008A 2 Chicago Embassy Suites 600 North State Street
4 004B 008B 2 Wyndham Greenspoint Hotel 12400 Greenspoint Drive
5 005 010 1 L'Enfant Plaza Summary Various Addresses
5 005A 010A 1 L'Enfant Plaza - East Building 990 L'Enfant Plaza SW
5 005B 010B 1 Loews L'Enfant Plaza Hotel 480 L'Enfant Plaza, SW
6 006 011 2 260-261 Madison Avenue 260-261 Madison Avenue
7 007 012 2 Trident Center 11355 West Olympic Boulevard
8 008 002 2 Thurman Multifamily Portfolio Summary Various Addresses
8 008A 002J 2 The Parks at Maryland Apartments 1161 Lulu Avenue
8 008B 002F 2 Villas at Vickery 7001 Fair Oaks Drive
8 008C 002B 2 Park Hill Apartments 7235 S.W. 94th Place
8 008D 002D 2 The Woodlands of Plano Apartments 1370 Rigsbee Drive
8 008E 002H 2 Desert Sands Apartments 5709 Belknap Street
8 008F 002E 2 Willows on Hunnicut Apartments 7526 Hunnicut Road
8 008G 002C 2 The Encore Apartments 7255 Corporate Drive
8 008H 002A 2 Oakwood Gardens Apartments 5625 Antoine Drive
8 008I 002G 2 Turtle Creek Apartments 2005 South Cooper Street
8 008J 002I 2 Woodlawn Park Apartments 1626 18th Avenue North
9 009 013 2 Koll Corporate Plaza 485 Route 1
10 010 003 2 Pinstripe Multifamily Portfolio Summary Various Addresses
10 010A 003B 2 Covington Walk Apartments 4565 Covington Highway
10 010B 003C 2 Oak Tree Apartments 2877 Walnut Hill Lane
10 010C 003L 2 Sunridge Apartments 145 East Pioneer Parkway
10 010D 003J 2 Stradford Oaks Apartments 4000 Watonga Blvd.
10 010E 003K 2 Shadowtree Apartments 9475 Roark Road
10 010F 003I 2 Briarwood Apartments 7326 Stockton Boulevard
10 010G 003R 2 Wexford Townhomes 600 Wembley Circle
10 010H 003H 2 Mediterranean Gardens Apartments 3958 Montgomery Blvd., NE
10 010I 003A 2 Azalea Apartments 764 Windomere Avenue
10 010J 003E 2 Canyon Point Apartments 301 Western Skies Drive, SE
10 010K 003D 2 Canyon Ridge Apartments 200 Figueroa Drive, NE
10 010L 003Q 2 Toscana On Skillman Apartments 6854 Skillman Street
11 011 014 1 Pearl Highlands Center 1000 Kamehameha Highway
12 012 015 2 1133 Connecticut Avenue 1133 Connecticut Avenue, NW
13 013 004 2 Garden Variety Apartments Portfolio Summary Various Addresses
13 013A 004E 2 Harbor Island Apartments 433 Buena Vista Avenue
13 013B 004A 2 Ski Lodge I Apartments 108 Ski Lodge Drive
14 014 016 1 Donatelli Portfolio Summary Various Addresses
14 014A 016D 1 Plaza 500 6295 Edsall Road
14 014B 016B 1 Van Buren Office Center 250 Exchange Place & 510-520 Herndon
Parkway
14 014C 016C 1 Reico Distributors 6600 Business Parkway
14 014D 016A 1 Standard Warehouse 13129 Airpark Drive
15 015 018 2 Camco Summary Various Addresses
15 015A 018B 2 Irving Market Center 3903-4033 West Highway 183
15 015B 018A 2 North Hills Village 7651-7655 Highway 26
15 015C 018C 2 Northeast Business Park 8200-8216 Northeast Parkway
16 016 019 1 Accor - Texas Summary Various Addresses
16 016A 019E 1 Accor - Texas Motel 6 #1122 211 North Pecos La Trinidad Street
16 016B 019D 1 Accor - Texas Motel 6 #1121 2550 North Central Expressway
16 016C 019B 1 Accor - Texas Motel 6 #298 909 66th Street
16 016D 019F 1 Accor - Texas Motel 6 #1208 16500 Interstate Highway, 10 W
16 016E 019C 1 Accor - Texas Motel 6 #362 2327 Texas Avenue South
16 016F 019A 1 Accor - Texas Motel 6 #229 311 North Bryant
17 017 020 1 8484 Wilshire Boulevard 8484 Wilshire Boulevard
18 018 021 2 Courthouse Square Apartments 804 Mockingbird Lane
19 019 273 1 United Artists - 5 Theaters Summary Various Addresses
19 019A 273B 1 UA Snowden Square 9161 Commerce Center Drive
19 019B 273C 1 UA Commerce Crossing 3330 Spring Vale Drive
19 019C 273D 1 UA Cinemas 8 at Southlake 6795 Green Industrial Way
19 019D 273E 1 UA Shannon 8 4600 Jonesboro Road
19 019E 273A 1 UA Berkeley Cinema 7 2274 Shattuck Avenue
20 020 022 2 Ramblewood Village Apartments 601A Country Club Parkway
21 021 024 1 Lipkin Portfolio Summary Various Addresses
21 021A 024I 1 Town & Country Shopping Center NWC Fruitville Rd & Beneva Road
21 021B 024H 1 Southgate Shopping Center 2018 South Philo Road
21 021C 024G 1 O'Fallon Square 20 O'Fallon Square
21 021D 024A 1 Crossroads Plaza State Route 25 and Gypsy Lane
21 021E 024E 1 Independence Square 16200 East Highway 24
21 021F 024J 1 Steger K-Mart 3231 Chicago Road
21 021G 024C 1 Summit Plaza 300 Summit Drive
21 021H 024F 1 K-Mart Plaza 4300 Xylon Avenue
21 021I 024D 1 Grady Plaza Shopping Center 740 15th Street
21 021J 024B 1 K-Mart Plaza 1401 Memorial Parkway N.W.
22 022 023 2 Grand Union Summary Various Addresses
22 022A 023A 2 Grand Union - Valatie 2827 Route 9
22 022B 023C 2 Grand Union - Morristown Route 100/ Stafford Avenue
22 022C 023B 2 Grand Union - Tannersville Route 23A/Leach Lane
23 023 025 1 Accor - Florida Summary Various Addresses
23 023A 025A 1 Accor - Florida Motel 6 #436 7455 West Irlo Bronson Memorial Highway
23 023B 025B 1 Accor - Florida Motel 6 #483 333 East Fowler Avenue
23 023C 025C 1 Accor - Florida Motel 6 #677 3120 U.S. Highway 98 North
23 023D 025D 1 Accor - Florida Motel 6 #1191 2738 North Monroe
24 024 026 2 Summit Portfolio Summary Various Addresses
24 024A 026A 2 97 Sunfield Avenue 97 Sunfield Avenue
24 024B 026D 2 105 Raider Boulevard 105 Raider Boulevard
24 024C 026E 2 700 Federal Boulevard 700 Federal Boulevard
24 024D 026C 2 87 Sunfield Avenue 87 Sunfield Avenue
24 024E 026B 2 503 Newfield Avenue 503 Newfield Avenue
25 025 028 1 American Restaurant Group, Inc. Summary Various Addresses
25 025A 028G 1 Stuart Anderson's Black Angus 139 W. Thousand Oaks Boulevard
25 025B 028F 1 Stuart Anderson's Black Angus 1011 Blossom Hill Road
25 025C 028D 1 Stuart Anderson's Black Angus 101 East Bay State Street
25 025D 028C 1 Stuart Anderson's Black Angus 1625 Watt Avenue
25 025E 028H 1 Stuart Anderson's Cattle Company 1704 Shadeland Avenue
25 025F 028E 1 Stuart Anderson's Cattle Company 7853 South U.S. Highway 31
25 025G 028A 1 Stuart Anderson's Black Angus 5259 West Indian School Road
25 025H 028B 1 Stuart Anderson's Black Angus 6875 South Broadway
26 026 029 1 Accor - Midwest Summary Various Addresses
26 026A 029B 1 Accor - Midwest Motel 6 #1153 3032 S. Expressway Street
26 026B 029A 1 Accor - Midwest Motel 6 #1195 1224 Wannamaker Road SW
26 026C 029C 1 Accor - Midwest Motel 6 #1077 635 West Diamond Drive
26 026D 029D 1 Accor - Midwest Motel 6 #1173 1754 Thierer Road
26 026E 029E 1 Accor - Midwest Motel 6 #1236 4981 North Harrison Street
27 027 030 2 Ventana Canyon Apartments 1250 American Pacific Drive
28 028 031 2 English Village Apartments 15 Fox Hall
29 029 032 1 Accor - East Summary Various Addresses
29 029A 032A 1 Accor - East Motel 6 #1063 269 Flanders Road
29 029B 032C 1 Accor - East Motel 6 #1062 2 Progress Avenue
29 029C 032D 1 Accor - East Motel 6 #1219 249 J.T. Connell Highway
29 029D 032B 1 Accor - East Motel 6 #403 1200 West Avenue / S. Highway 9
29 029E 032E 1 Accor - East Motel 6 #1058 1254 Putney Road
30 030 033 1 Cinemark - Austin 5501 Interstate Highway 35 South
31 031 034 1 Town and Country Shopping Center 6302-6360 W. Third St/ 300-370
S. Fairfax Ave./347 Ogden Dr
32 032 036 1 Accor - Southeast Summary Various Addresses
32 032A 036A 1 Accor - Southeast Motel 6 #1068 605 South Regional Road
32 032B 036D 1 Accor - Southeast Motel 6 #459 1321 Sycamore View
32 032C 036C 1 Accor - Southeast Motel 6 #496 7937 Dream Street
32 032D 036B 1 Accor - Southeast Motel 6 #1234 1408 Sandhills Boulevard
33 033 037 1 Regal Cinema 103 State Road 7
34 034 038 1 Southside Mall 275 Mall Road
35 035 039 1 Accor - West Summary Various Addresses
35 035A 039A 1 Accor - West Motel 6 #1185 8152 N. Black Canyon
35 035B 039C 1 Accor - West Motel 6 #1043 7407 Elsie Avenue
35 035C 039B 1 Accor - West Motel 6 #675 2040 North Preisker Lane
36 036 041 2 McKnight Place Extended Care Two McKnight Place
37 037 042 1 Tamarus I and II Apartments 4255 Tamarus St
38 038 043 2 Shaw's Shopping Center 134-200 Walley Avenue
39 039 044 1 The Prada Building 2174 Kalakana Avenue
40 040 046 2 St. Landry Plaza Shopping Center I-49 & Heather Drive
41 041 047 1 Garden Ridge 3599 Park Mill Run Drive
42 042 048 1 Jewelry Theatre Building 411 West Seventh Street
43 043 050 1 Holiday Inn - Farmington Hills 38123 West Ten Mile Road
44 044 079 2 Whispering Palms-Viscaya Apart 5800 University Blvd. West
45 045 051 1 1000 Sylvan Avenue 1000 Sylvan Avenue
46 046 052 2 K-Mart Plaza 3010-3070 Highway 35 South
47 047 053 2 Lincoln Plaza Hotel 123 South Lincoln Avenue
48 048 055 2 Island Walk Shopping Center 1525 Sadler Road
49 049 266 2 Forest Ridge Shopping Center 1636 Henderson Road (US Highway 25)
50 050 056 1 Agawan Stop & Shop 1282 Springfield Street
51 051 058 1 Hoyt's - Bellingham 259 Hartford Avenue (Charles River Center)
52 052 060 2 Stirling Industrial Park 1200-1340 Stirling Road
53 053 999 1 Pamida Summary Various Addresses
53 053A 215 1 Pamida Montana #296 1600 U.S. Highway 2
53 053B 216 1 Pamida Nebraska #113 110 Pony Express Road
53 053C 223 1 Pamida Nebraska #155 East State Highway 8 & Hartley St.
53 053D 224 1 Pamida Wyoming #291 205 Boyd Avenue
53 053E 235 1 Pamida Kansas #157 821 West Crawford Street
54 054 061 2 Bloomfield Multi Summary Various Addresses
54 054A 061L 2 13815-25 Victory Blvd. 13815-25 Victory Blvd.
54 054B 061G 2 14023-27 Oxnard Street 14023-27 Oxnard Street
54 054C 061I 2 14706 Dickens Street 14706 Dickens Street
54 054D 061M 2 15405 Vanowen Street 15405 Vanowen Street
54 054E 061K 2 4437-39 Vista Del Monte 4437-39 Vista Del Monte
54 054F 061C 2 11564-11604 Sylvan Street 11564-11604 Sylvan Street
54 054G 061B 2 10745 Hortense Avenue 10745 Hortense Avenue
54 054H 061E 2 250 S. Reno Street 250 S. Reno Street
54 054I 061F 2 256 S. Rampart Street 256 S. Rampart Street
54 054J 061J 2 5722-28 Elmer Ave 5722-28 Elmer Ave
54 054K 061H 2 7340 Variel Avenue 7340 Variel Avenue
54 054L 061D 2 1132 N. Cahuenga 1132 N. Cahuenga
54 054M 061A 2 5714-18 Elmer 5714-18 Elmer Ave
55 055 065 2 Wendell Terrace 20 Wendall Street
56 056 067 1 Washington HUD Summary Various Addresses
56 056A 067B 1 McKinley Terrace 809 East Wright Avenue
56 056B 067A 1 Meadow Park Garden Court 5602 Hanna Pierce Road West
56 056C 067N 1 Chehalis Manor Apartments 300 South Market Boulevard
56 056D 067D 1 Kennewick Garden Court Apartments 955 West 5th Avenue
57 057 888 1 Best Buy Summary Various Addresses
57 057A 119 1 Best Buy - Canton, OH 4831 Whipple Avenue NW
57 057B 136 1 Best Buy - Spartanburg, SC 399 Peachwood Centre Drive
58 058 069 2 Northpointe Shopping Center 2402-2414 East Shawnee Avenue
59 059 070 1 U.S. Equities II Summary Various Addresses
59 059A 070L 1 U.S. Post Office - Rincon 503 Northridge
59 059B 070C 1 U.S. Post Office - Chapin 1249 Chapin Road
59 059C 070D 1 U.S. Post Office - China Grove 200 South Bostian Street
59 059D 070J 1 U.S. Post Office - Lyman 12490 Greenville Highway
59 059E 070E 1 U.S. Post Office - Dallas 3151 Dallas Highshoals Hwy.
59 059F 070B 1 U.S. Post Office - Carrollton 15108 Carrollton Blvd.
59 059G 070G 1 U.S. Post Office - Grand Isle Highway 1 at Lamanche de Nantes
59 059H 070M 1 U.S. Post Office - West Union 190 S. Highway 11
59 059I 070K 1 U.S. Post Office - Nesbit 600 Old Highway 51
59 059J 070I 1 U.S. Post Office - Little Mountain US 76 & Wheelland Road
59 059K 070A 1 U.S. Post Office - Barneveld 117 Remsen Road
59 059L 070F 1 U.S. Post Office - East Berne 873 Helderberg Trail
59 059M 070H 1 U.S. Post Office - Jonesville 3912 Furman Fendley Highway (US-176)
60 060 071 2 East 138th Street 430 - 440 & 428 - 446 East 138th Street
61 061 068 2 St. Charles Plaza 3100 U.S. Highway 90
62 062 075 2 PFI - Ignacio Gardens 420 Alameda Del Prado
63 063 077 2 State Farm Building 100 Haul Road
64 064 078 2 Time Warner Building 25-20 Brooklyn Queens Expressway
65 065 082 2 Sunset Plaza Shopping Center 18463 North US Highway 41
66 066 084 2 Centro Plaza 400 North 48th Street
67 067 270 2 Sherwood Forest dba Grand Oaks 10103 Sherwood Lane
68 068 086 1 Shoppes of Wilton Manor 2228-2292 Wilton Drive
69 069 087 1 Essex Portfolio Summary Various Addresses
69 069A 087A 1 Erie Microtel Inn 8100 Peach Street
69 069B 087B 1 Youngstown Microtel Inn 7393 South Avenue
70 070 088 2 Royal Dane Mall 26 Dronningens Gade
71 071 089 1 29 John Street 29 John Street
72 072 268 2 Warrington Apartments 775 Post Street
73 073 090 1 Plaza Diamond Bar 1900-2040 South Brea Canyon Road
74 074 092 2 Rio Del Oro Racquet Club 119 Scripps Drive
75 075 093 2 Century Square Apartments 3401 Red River Street
76 076 095 1 East-West 4 LLC Summary Various Addresses
76 076A 095A 1 312 East 93rd Street 312 East 93rd Street
76 076B 095D 1 237 West 18th Street 237 West 18th Street
76 076C 095B 1 349 East 51st Street 349 East 51st Street
76 076D 095C 1 450 West 50th Street 450 West 50th Street
77 077 097 1 Alameda Office 2417 Central Avenue
78 078 098 2 Jefferson Plaza Summary Various Addresses
78 078A 098B 2 South Winton Court 3136 South Winton Court
78 078B 098A 2 Jefferson Plaza 376 Jefferson Road
79 079 080 2 Bloomfield - Lex Various Addresses
79 079A 080E 2 20615 Vanowen Street 20615 Vanowen Street
79 079B 080C 2 7410 Woodman Street 7410 Woodman Street
79 079C 080F 2 11422-26 & 11442 Tiara Street 11422-26 & 11442 Tiara Street
79 079D 080D 2 248 S. Occidental Blvd. 248 S. Occidental Blvd.
79 079E 080B 2 15202-222 Victory Blvd. 15202-222 Victory Blvd.
79 079F 080A 2 5611 Fulcher Avenue 5611 Fulcher Avenue
80 080 099 1 Carroll Pool Summary Various Addresses
80 080A 099B 1 Dorian Place 375 N. Dorian Way
80 080B 099A 1 Wellsprings Assisted Living Facility 2104 W. Idaho Avenue
80 080C 099C 1 Indianhead Residential Care Facility 590 W. Indianhead Road
81 081 265 2 Copacabana Mobile Home Park 2717 Arrow Highway
82 082 100 1 Budgetel St. Charles 1425 South 5th Street
83 083 101 2 942 Hyde Park 942 Hyde Park
84 084 102 1 LG International Building 13013 East 166th Street & 13012 Moore Street
85 085 104 2 Homestead Gardens Apartments Wall Road
86 086 105 2 Westwood Portfolio Summary Various Addresses
86 086A 105E 2 Hampton West Apartments 157 Third Avenue
86 086B 105B 2 Sturbridge Commons 345 Kinderkamack Road
86 086C 105D 2 Sutton Place West Apartments 57 Crest Street
86 086D 105C 2 Linda Court Apartments 110 Elm Street
86 086E 105A 2 James Court Apartments 120 Fairview Avenue
86 086F 105F 2 Stratford Apartments 195 Third Avenue
87 087 106 2 Cherry Hill Plaza 27359 Cherry Hill Road
88 088 110 2 PFI - Lincoln Villa 1825 Lincoln Avenue
89 089 107 1 Bayscene Mobilehome Park 100 Woodlawn Ave.
90 090 096 2 Edgewater Square 2650 Pass Road
91 091 108 1 Economic Press Building 12 Daniel Road
92 092 109 1 Commerce Security Center 1533-1717 SW 1st Way
93 093 111 2 PFI - Northgate 825 Las Gallinas Avenue
94 094 112 2 Derrer Field Estates Apartments 3473 Derrer Hill Drive
95 095 113 1 Cedarwood Valley Office Park 1725-1765 Merriman Road
96 096 116 1 One Finderne Avenue 1 Finderne Avenue
97 097 117 1 Best Western Chateau Suite Hotel 201 Lake Drive
98 098 118 2 Affordable Warehouses NW 29th Street and NW 21st Avenue
99 099 267 2 Burke-Lewis Apartments 776 Bush Street
100 100 122 1 Rite Aid - Burton G-4007 South Saginaw Road and Bristol Road
101 101 123 2 AMP Building 59-61 Chubb Way
102 102 124 1 Holiday Inn Express 1695 Woodland Park Drive
103 103 125 2 Anchorage Trade Center Building 619 East Warehouse Avenue
104 104 128 1 Quality Inn - Nautilus 1538 Cape Coral Parkway
105 105 129 2 Rain Tree Plaza 4300 South Padre Island Drive
106 106 130 1 Comfort Inn - Greensboro 2001 Veasley Road
107 107 131 2 1270 Gerard Avenue 1270 Gerard Avenue
108 108 133 1 Suburban Lodge of Baymeadows 8285 Phillips Highway
109 109 134 1 Comfort Inn 4312 Cerrillos Road
110 110 135 2 PFI - Creekside 2575 Sir Francis Drake Blvd.
111 111 132 2 PFI - Fairway 1000 Ignacio Blvd
112 112 137 1 Franklin Court 2700 East Foothill Blvd
113 113 139 1 West Lancaster Plaza 2733-2849 West Avenue "L"
114 114 140 1 733 Yonkers Avenue 733 Yonkers Avenue
115 115 142 2 Bari Manor 31 Old Post Road South
116 116 144 1 Eckerd's - Berwick #5923 401 West Front Street
117 117 145 1 244 West 39th Street 244 West 39th Street
118 118 143 2 690 Gerard Avenue 690 Gerard Avenue
119 119 147 2 Lake Pointe Apartments 1100 Grand Avenue
120 120 148 2 230 East 167th Street 230 East 167th Street
121 121 146 2 2300 Grand Concourse 2300 Grand Concourse
122 122 149 1 CVS - Forest Hill 5001-5011 Forest Hill Avenue
123 123 160 1 Office Depot - Dallas 5111 Greenville Avenue
124 124 154 1 8000 North Federal Highway 8000 North Federal Highway
125 125 155 1 Portofino Beach Hotel 2304-2306 W Oceanfront
126 126 156 1 CVS - Auburn Court Street at Union Street
127 127 158 2 PFI - Ignacio Pines 195 Los Robles
128 128 159 1 CVS - Montgomery 10 Coliseum Boulevard
129 129 157 2 984 Sheridan Avenue 984 Sheridan Avenue
130 130 162 2 Shop Rite Center 775 NW 119th Street
131 131 163 2 111 East 167th Street 111 East 167th Street
132 132 164 1 CVS - Cranston 1178-1194 Pontiac Avenue
133 133 152 2 PFI - Oak Hill Apartments 216 Marin Street
134 134 168 2 176 East 176th Street 176 East 176th Street
135 135 166 1 CVS - Bessemer 831 - 9th Avenue North
136 136 167 2 2585-93 Grand Concourse 2585-93 Grand Concourse
137 137 170 1 2899-2901 Third Avenue 2899-2901 Third Avenue
138 138 169 1 CVS - Middlefield 15925-15935 W. High Street
139 139 161 2 1210 Sherman Avenue 1210 Sherman Avenue
140 140 153 2 215 Mount Hope Place 215 Mount Hope Place
141 141 165 2 Hudson View Estates 2 Lake View Drive
142 142 173 1 Belleair Bazaar 2901-2989 West Bay Drive
143 143 171 2 Chateau Thierry Apartments 10500 Hayne Boulevard
144 144 172 1 CVS - Colonial Heights U.S. Rte 1/301 (Colonial Heights Blvd)
145 145 175 1 CVS - Augusta 3527 Old Petersburg Road
146 146 176 1 Safeguard Self Storage 3134 Chestnut Drive
147 147 177 1 CVS - New Haven #6496 Hartzell Road & U.S. 930
148 148 178 1 CVS - Huntersville Sam Furr Road and NC Highway 73
149 149 272 1 Buena Park Manor MHP 7142 Orangethorpe Avenue
150 150 179 1 Comfort Inn - Petersburg 11974 South Crater Road
151 151 180 1 CVS - Ringgold US Highway 41 & Highway 151
152 152 181 2 Continental Pak 75 Onderdonk Avenue
153 153 183 2 2544 Valentine Avenue 2544 Valentine Avenue
154 154 184 1 CVS - Cleveland 6301 Harvard Avenue
155 155 186 1 CVS - Madison 717 Highway Street
156 156 185 2 PFI - Westview 125 Nova Albion Way
157 157 188 1 CVS - Painesville Route 20 at Palmer
158 158 189 1 CVS - Pelzer SC Highway 8
159 159 211 2 PFI - Ignacio Hills III 401 Ignacio Boulevard
160 160 191 1 Walgreens Plaza 2785-2845 North Andrews Avenue
161 161 193 1 Best Western - Wright Patterson 800 North Broad Street
162 162 195 2 Clarion Hotel 34734 Pacific Coast Highway
163 163 194 2 7600 Medley Industrial Building 7600-7650 N.W. 69th Avenue
164 164 197 1 CVS - Smyrna Sam Ridley Parkway
165 165 199 1 Citrus Plaza 230 US Highway 41
166 166 200 2 Cane Village/Indian Summer Apartments 100 Melrose Avenue
167 167 198 2 2908-10 Valentine Avenue 2908-10 Valentine Avenue
168 168 202 1 416-418 Knickerbocker 416-418 Knickerbocker Avenue
169 169 196 2 2 Minerva Place 2 Minerva Place
170 170 201 2 PFI - Northern Apartments 507 Northern Avenue
171 171 203 2 Sparta Green Townhouses 111 South Highland Avenue
172 172 204 1 CVS - Owensboro 3311 KY Highway 54
173 173 205 1 CVS - Barnwell Dunbarton Street
174 174 207 2 48 Hill Street 48 Hill Street
175 175 206 1 Galaxy Hotel 860 Pennsylvania Avenue
176 176 208 2 Elmwood Galleria 77 West Elmwood Drive
177 177 209 1 CVS - Marysville 969 West Fifth Street
178 178 182 2 1791 Grand Concourse 1791 Grand Concourse
179 179 187 2 2505 Olinville Avenue 2505 Olinville Avenue
180 180 212 1 Econo Lodge - Biloxi 1776 Beach Boulevard
181 181 217 1 CVS - Bedford SWC Northfield and Solon Rds.
182 182 220 1 Ingram Park Plaza Shopping Center 6151 NW Loop 410
183 183 221 1 Rite Aid - Detroit 19160 Greenfield Road
184 184 222 2 Powell Street Warehouses 5725 Powell Street
185 185 218 2 3041 Holland Avenue 3041 Holland Avenue
186 186 214 2 3031 Holland Avenue 3031 Holland Avenue
187 187 219 2 1240 Sherman Avenue 1240 Sherman Avenue
188 188 226 1 2174 Pelham Associates 2174-2180 White Plains Road
189 189 227 1 CVS - Cairo Routes 23B and 32
190 190 229 2 PFI - Strawberry 11 South Knoll Drive
191 191 228 1 CVS - Hopewell Gringo-South Heights Road/Laurel Road
192 192 233 1 54-64 Broad Street 54-64 Broad Street
193 193 236 2 PFI - Via Casitas 140 Lower Via Casitas
194 194 234 1 Best Western - Celebration 724 Madison Street
195 195 237 1 Rite Aid - Dearborn 7630 Wyoming Avenue
196 196 239 1 Gateway Retail Center 7100 Gateway Blvd. East
197 197 246 2 PFI - Ignacio Hills I 475 Ignacio Boulevard
198 198 230 2 1945 Loring Place South 1945 Loring Place South
199 199 240 2 Three Pines Apartments 6222 Lewis Avenue
200 200 241 1 363 Bloomfield Avenue 363 Bloomfield Avenue
201 201 248 2 Parker Plaza Shopping Center 10401-10465 South Parker Road
202 202 243 1 Nature's Edge Assisted Living Facility 699 NW Airoso Boulevard
203 203 244 2 PFI - Country Club 980 Ignacio Boulevard
204 204 245 2 202 Industrial Loop 202 Industrial Loop
205 205 249 2 Stonegate Apartments 747 N. Azusa Avenue
206 206 250 1 1655 East 13th Street 1655 East 13th Street
207 207 251 2 Villa Serena 1380 and 1390 Moline Street
208 208 271 2 Lake Village Apartments 3700 Lake Avenue
209 209 255 1 AeroPanel Building 661 Myrtle Avenue
210 210 253 2 344 East 209th Street 344 East 209th Street
211 211 254 2 2935 Holland Avenue 2935 Holland Avenue
212 212 258 2 Sherwood Townhouses 7 Sherwood Avenue
213 213 256 2 2885 Briggs Avenue 2885 Briggs Avenue
214 214 260 2 PFI - Ignacio Hills IV 551 Ignacio Boulevard
215 215 259 2 116 Henwood Place 116 Henwood Place
216 216 261 1 398 Third Avenue 398 Third Avenue
217 217 263 1 SpinCycle 173 - Milwaukee 2239 W. National Avenue
</TABLE>
<TABLE>
<CAPTION>
Loan Zip Property
# City State Code Type
<S> <C> <C> <C> <C>
1 Various Cities Various Various Office
1 Staten Island NY 10309 Office
1 Louisville KY 40222 Office
1 Woodcliff Lake NJ 07675 Office
1 Louisville KY 40222 Office
1 Louisville KY 40223 Retail, Anchored
1 Louisville KY 40223 Office
1 Louisville KY 40220 Office
1 Louisville KY 40222 Office
1 Wichita KS 67208 Office
1 Wichita KS 67206 Office
2 New York NY 10038 Office
3 Various Cities Various Various Industrial
3 Gaithersburg MD 20877 Industrial
3 Frederick MD 21701 Office
3 Randallstown MD 21133 Industrial
3 Gaithersburg MD 20877 Industrial
3 Martinsburg WV 25401 Retail, Anchored
3 Frederick MD 21701 Industrial
3 Frederick MD 21704 Industrial
3 Westminster MD 21157 Industrial
3 Gaithersburg MD 20877 Retail, Unanchored
3 Frederick MD 21701 Office
3 Frederick MD 21701 Office
3 Largo MD 20785 Office
3 Germantown MD 20876 Office
3 Gaithersburg MD 20879 Industrial
4 Various Cities Various Various Lodging, Full Service
4 Chicago IL 60610 Lodging, Full Service
4 Houston TX 77060 Lodging, Full Service
5 Various Cities Various Various Office
5 Washington DC 20024 Office
5 Washington DC 20024 Lodging, Full Service
6 New York NY 10016 Office
7 Los Angeles CA 90064 Office
8 Various Cities Various Various Multifamily
8 Las Vegas NV 89119 Multifamily
8 Dallas TX 75231 Multifamily
8 Miami FL 33173 Multifamily
8 Plano TX 75074 Multifamily
8 Fort Worth TX Multifamily
8 Dallas TX 75227 Multifamily
8 Houston TX 77036 Multifamily
8 Houston TX 77091 Multifamily
8 Arlington TX 76010 Multifamily
8 St. Petersburg FL 33713 Multifamily
9 Iselin NJ 08830 Office
10 Various Cities Various Various Multifamily
10 Decatur GA 30035 Multifamily
10 Irving TX 75038 Multifamily
10 Grand Prairie TX 75051 Multifamily
10 Houston TX 77092 Multifamily
10 Houston TX 77099 Multifamily
10 Sacramento CA 95823 Multifamily
10 Duncanville TX 75055 Multifamily
10 Albuquerque NM 87109 Multifamily
10 Richmond VA 23227 Multifamily
10 Albuquerque NM 87123 Multifamily
10 Albuquerque NM 87109 Multifamily
10 Dallas TX 75231 Multifamily
11 Pearl City, Island of Oahu HI 96782 Retail, Anchored
12 Washington DC 20036 Office
13 Various Cities Various Various Multifamily
13 Alameda CA 94501 Multifamily
13 Birmingham AL 35209 Multifamily
14 Various Cities Various Various Industrial
14 Alexandria VA 22312 Industrial
14 Herndon VA 20170 Office
14 Elkridge MD 21227 Industrial
14 Elkwood VA 20170 Industrial
15 Various Cities Various Various Retail, Anchored
15 Irving TX Retail, Anchored
15 North Richland Hills TX 76180 Retail, Anchored
15 North Richland Hills TX 76180 Industrial
16 Various Cities Various Various Credit Lease
16 San Antonio TX 78207 Credit Lease
16 Plano TX 75074 Credit Lease
16 Lubbock TX 79412 Credit Lease
16 San Antonio TX 78257 Credit Lease
16 College Station TX 77840 Credit Lease
16 San Angelo TX 76901 Credit Lease
17 Beverly Hills CA 90211 Office
18 Towson MD 21286 Multifamily
19 Various Cities Various Various Credit Lease
19 Columbia MD 21045 Credit Lease
19 Commerce Township MI 48322 Credit Lease
19 Morrow GA 30260 Credit Lease
19 Union City GA 30291 Credit Lease
19 Berkeley CA 94704 Credit Lease
20 Mount Laurel NJ 08054 Multifamily
21 Various Cities Various Various Retail
21 Sarasota FL 33577 Retail, Anchored
21 Urbana IL 61801 Retail, Anchored
21 O'Fallon MO 63366 Retail, Anchored
21 Bowling Green OH 43402 Retail, Anchored
21 Independence MO 64056 Retail, Anchored
21 Steger IL 60475 Retail, Single Tenant
21 Lockport IL 60441 Retail, Anchored
21 New Hope MN 55428 Retail, Single Tenant
21 Yazoo City MS 39194 Retail, Anchored
21 Huntsville AL 35816 Retail, Single Tenant
22 Various Cities Various Various Retail, Single Tenant
22 Valatie NY 12184 Retail, Single Tenant
22 Morristown VT 05661 Retail, Single Tenant
22 Tannersville NY 12485 Retail, Single Tenant
23 Various Cities Various Various Credit Lease
23 Kissimmee FL 34747 Credit Lease
23 Tampa FL 33612 Credit Lease
23 Lakeland FL 33805 Credit Lease
23 Tallahassee FL 32303 Credit Lease
24 Various Cities Various Various Industrial
24 Edison NJ 08837 Industrial
24 Hillsborough NJ 08502 Office
24 Carteret NJ 07008 Office
24 Edison NJ 08837 Industrial
24 Edison NJ 08837 Industrial
25 Various Cities Various Various Credit Lease
25 Thousand Oaks CA 91360 Credit Lease
25 San Jose CA 95123 Credit Lease
25 Alhambra CA 91801 Credit Lease
25 Sacramento CA 95864 Credit Lease
25 Indianapolis IN 46219 Credit Lease
25 Indianapolis IN 46227 Credit Lease
25 Phoenix AZ 85031 Credit Lease
25 Littleton CO 80122 Credit Lease
26 Various Cities Various Various Credit Lease
26 Council Bluffs IA 51501 Credit Lease
26 Topeka KS 66604 Credit Lease
26 Salina KS 67401 Credit Lease
26 Madison WI 53704 Credit Lease
26 Shawnee OK 74801 Credit Lease
27 Henderson NV 89014 Multifamily
28 Mill Creek Hundred DE 19711 Multifamily
29 Various Cities Various Various Credit Lease
29 Niantic CT 06357 Credit Lease
29 Nashua NH 03062 Credit Lease
29 Newport RI 02840 Credit Lease
29 Wilmington DE 19720 Credit Lease
29 Brattleboro VT 05301 Credit Lease
30 Austin TX 75231 Credit Lease
31 Los Angeles CA 90048 Retail, Anchored
32 Various Cities Various Various Credit Lease
32 Greensboro NC 27408 Credit Lease
32 Memphis TN 38134 Credit Lease
32 Florence KY 41042 Credit Lease
32 Aberdeen (Pinehurst) NC 28315 Credit Lease
33 Village of Royal Palm Beach FL 33411 Credit Lease
34 South Williamson KY 41503 Retail, Anchored
35 Various Cities Various Various Credit Lease
35 Phoenix AZ 85051 Credit Lease
35 Sacramento CA 95828 Credit Lease
35 Santa Maria CA 93454 Credit Lease
36 St. Louis MO 63124 Nursing Home
37 Las Vegas NV 81166 Multifamily
38 New Haven CT 06511 Retail, Anchored
39 Honolulu HI 96815 Retail, Single Tenant
40 Opelousas LA 70570 Retail, Anchored
41 Hilliard OH 43026 Credit Lease
42 Los Angeles CA 90014 Retail, Unanchored
43 Farmington MI 48335 Lodging, Full Service
44 Jacksonville FL 32216 Multifamily
45 Englewood Cliffs NJ 07632 Office
46 Hazlet NJ 07730 Retail, Anchored
47 Monterey Park CA 91755 Lodging, Full Service
48 Fernandina Beach FL 32034 Retail, Anchored
49 Asheville NC 28803 Retail, Anchored
50 Agawam MA 01030 Retail, Single Tenant
51 Bellingham MA 02019 Credit Lease
52 Dania FL 33004 Industrial
53 Various Cities Various Various Credit Lease
53 Libby MT 59923 Credit Lease
53 Ogallala NE 69153 Credit Lease
53 Superior NE 68978 Credit Lease
53 Newcastle WY 82701 Credit Lease
53 Clay Center KS 67432 Credit Lease
54 Various Cities Various Various Multifamily
54 Van Nuys CA 91436 Multifamily
54 Van Nuys CA 91401 Multifamily
54 Sherman Oaks CA 91423 Multifamily
54 Van Nuys CA 91406 Multifamily
54 Sherman Oaks CA 91436 Multifamily
54 North Hollywood CA 91601 Multifamily
54 North Hollywood CA 91436 Multifamily
54 Los Angeles CA 90057 Multifamily
54 Los Angeles CA 91436 Multifamily
54 North Hollywood CA 91601 Multifamily
54 Canoga Park CA 91303 Multifamily
54 Hollywood CA 91436 Multifamily
54 North Hollywood CA 91601 Multifamily
55 Hempstead NY 11550 Multifamily
56 Various Cities Various Various Multifamily
56 Tacoma WA 98404 Multifamily
56 Tacoma WA 98467 Multifamily
56 Chehalis WA 98532 Multifamily
56 Kennewick WA 99336 Multifamily
57 Various Cities Various Various Retail, Single Tenant
57 Canton OH 44718 Retail, Single Tenant
57 Spartanburg SC 29301 Retail, Single Tenant
58 Muskogee OK 74403 Retail, Anchored
59 Various Cities Various Various Special Purpose
59 Rincon GA 31326 Special Purpose
59 Chapin SC Special Purpose
59 China Grove NC 28023 Special Purpose
59 Lyman SC 29365 Special Purpose
59 Dallas NC 28034 Special Purpose
59 Carrollton VA 23314 Special Purpose
59 Grand Isle LA 70358 Special Purpose
59 West Union SC 29696 Special Purpose
59 Nesbit MS 38651 Special Purpose
59 Little Mountain SC 29075 Special Purpose
59 Barneveld NY 13304 Special Purpose
59 East Berne NY 12059 Special Purpose
59 Jonesville SC 29353 Special Purpose
60 Bronx NY 10454 Multifamily
61 Luling LA 70070 Retail, Anchored
62 Novato CA 94949 Multifamily
63 Wayne NJ 07470 Industrial
64 Woodside NY 11377 Industrial
65 Lutz FL 33549 Retail, Anchored
66 Lincoln NE 68504 Retail, Anchored
67 Riverview FL 33569 Multifamily
68 Wilton Manors FL 33305 Retail, Unanchored
69 Various Cities Various Various Lodging, Limited Service
69 Erie PA 16509 Lodging, Limited Service
69 Boardman OH 44512 Lodging, Limited Service
70 St. Thomas VI 00802 Retail, Unanchored
71 New York NY 10038 Office
72 San Francisco CA 94109 Multifamily
73 Diamond Bar CA 91765 Office
74 Sacramento CA 95825 Special Purpose
75 Austin TX 78705 Multifamily
76 Various Cities Various Various Multifamily
76 New York NY 10028 Multifamily
76 New York NY 10011 Multifamily
76 New York NY 10019 Multifamily
76 New York NY 10019 Multifamily
77 Alameda CA 94501 Medical Office
78 Various Cities Various Various Retail
78 Henrietta NY 14623 Office
78 Henrietta NY 14623 Retail, Unanchored
79 Various Cities Various Various Multifamily
79 Canoga Park CA 91306 Multifamily
79 Van Nuys CA 91405 Multifamily
79 North Hollywood CA 91601 Multifamily
79 Los Angeles CA 90057 Multifamily
79 Van Nuys CA 91411 Multifamily
79 North Hollywood CA 91436 Multifamily
80 Various Cities Various Various Assisted Living Facility
80 Ontario OR 97914 Assisted Living Facility
80 Ontario OR 97914 Assisted Living Facility
80 Weiser ID 83672 Nursing Home
81 LaVerne CA 91750 Mobile Home Park
82 St. Charles MO 63301 Lodging, Limited Service
83 Boston MA 02136 Retail, Anchored
84 Cerritos CA 90701 Industrial
85 Spring Lake Heights NJ 07762 Multifamily
86 Various Cities Various Various Multifamily
86 Westwood NJ 07675 Multifamily
86 Westwood Borough NJ 07675 Office
86 Westwood Borough NJ 07675 Multifamily
86 Westwood NJ 07676 Multifamily
86 Westwood Borough NJ 07675 Multifamily
86 Westwood NJ 07675 Multifamily
87 Inkster MI 48141 Retail, Anchored
88 San Rafael CA 94901 Multifamily
89 Chula Vista CA 91910 Mobile Home Park
90 Biloxi MS 39531 Retail, Unanchored
91 Fairfield NJ 07004 Industrial
92 Deerfield Beach FL 33064 Industrial
93 San Rafael CA 94903 Multifamily
94 Columbus OH 43204 Multifamily
95 Akron OH 44313 Office
96 Bridgewater NJ 08807 Industrial
97 Shreveport LA 71101 Lodging, Limited Service
98 Oakland Park FL 33311 Industrial
99 San Francisco CA 94102 Multifamily
100 Burton MI Credit Lease
101 Branchburg NJ 08876 Industrial
102 Layton UT 84041 Lodging, Limited Service
103 Anchorage AK 99501 Industrial
104 Cape Coral FL 33904 Lodging, Limited Service
105 Corpus Christi TX 78411 Retail, Unanchored
106 Greensboro NC 27407 Lodging, Limited Service
107 New York NY 10452 Multifamily
108 Jacksonville FL 32256 Lodging, Extended Stay
109 Santa Fe NM 87505 Lodging, Limited Service
110 Fairfax CA 94939 Multifamily
111 Novato CA 94949 Multifamily
112 Pasadena CA 91107 Office
113 Lancaster CA 93536 Retail, Anchored
114 Yonkers NY 10704 Office
115 Croton-on-Hudson NY 10520 Multifamily
116 Berwick PA 18603 Credit Lease
117 New York NY 10018 Office
118 Bronx NY 10451 Multifamily
119 Schofield WI 54476 Multifamily
120 Bronx NY 10456 Multifamily
121 Bronx NY 10458 Multifamily
122 Richmond VA 23225 Credit Lease
123 Dallas TX 75206 Credit Lease
124 Boca Raton FL 33434 Office
125 Newport Beach CA 92663 Lodging, Full Service
126 Auburn ME 04210 Credit Lease
127 Novato CA 94949 Multifamily
128 Montgomery AL 36109 Credit Lease
129 Bronx NY 10456 Multifamily
130 North Miami FL 33168 Retail, Anchored
131 Bronx NY 10452 Multifamily
132 Cranston RI 02920 Credit Lease
133 San Rafael CA 94901 Multifamily
134 Bronx NY 10457 Multifamily
135 Bessemer AL 35020 Credit Lease
136 Bronx NY 10468 Multifamily
137 Bronx NY 10455 Retail, Unanchored
138 Middlefield OH 44062 Credit Lease
139 Bronx NY 10456 Multifamily
140 Bronx NY 10457 Multifamily
141 Peekskill NY 10566 Multifamily
142 Belleair Bluffs FL 33770 Retail, Unanchored
143 New Orleans LA 70127 Multifamily
144 Colonial Heights VA 23834 Credit Lease
145 Augusta GA 30907 Credit Lease
146 Doraville GA 30130 Self-Storage
147 New Haven IN 46774 Credit Lease
148 Huntersville NC 28078 Credit Lease
149 Buena Park CA 90621 Mobile Home Park
150 Petersburg VA 23805 Lodging, Limited Service
151 Ringgold GA 30736 Credit Lease
152 Ridgewood NY 11385 Industrial
153 New York NY 10458 Multifamily
154 Cleveland OH 44124 Credit Lease
155 Madison NC 27025 Credit Lease
156 San Rafael CA 94903 Multifamily
157 Painesville OH 44077 Credit Lease
158 Pelzer SC 29669 Credit Lease
159 Novato CA 94949 Multifamily
160 Wilton Manors FL 33311 Retail, Anchored
161 Fairborn OH 45324 Lodging, Full Service
162 Capistrano Beach CA 92624 Lodging, Extended Stay
163 Medley FL 33166 Industrial
164 Smyrna TN 37167 Credit Lease
165 Inverness FL 36250 Retail, Anchored
166 Natchitoches LA 71457 Multifamily
167 Bronx NY 10458 Multifamily
168 Brooklyn NY 11237 Retail, Single Tenant
169 Bronx NY 10468 Multifamily
170 Mill Valley CA 94941 Multifamily
171 Ossining NY 10562 Multifamily
172 Owensboro KY 42301 Credit Lease
173 Barnwell SC 29812 Credit Lease
174 Bloomfield NJ 07003 Multifamily
175 Brooklyn NY 11207 Lodging, Limited Service
176 Centerville OH 45459 Office
177 Marysville OH 43040 Credit Lease
178 Bronx NY 10453 Multifamily
179 Bronx NY 10467 Multifamily
180 Biloxi MS 39531 Lodging, Limited Service
181 Bedford OH 44146 Credit Lease
182 San Antonio TX 78238 Retail, Unanchored
183 Detroit MI 48235 Credit Lease
184 Jefferson Parish LA 70115 Industrial
185 Bronx NY 10467 Multifamily
186 Bronx NY 10467 Multifamily
187 Bronx NY 10456 Multifamily
188 Bronx NY 10462 Retail, Unanchored
189 Cairo NY 12413 Credit Lease
190 Mill Valley CA 94941 Multifamily
191 Hopewell PA 15001 Credit Lease
192 Elizabeth NJ 07201 Office
193 Greenbrae CA 94904 Multifamily
194 Shelbyville TN 37160 Lodging, Limited Service
195 Dearborn MI 48120 Credit Lease
196 El Paso TX 79915 Retail, Unanchored
197 Novato CA 94949 Multifamily
198 Bronx NY 10453 Multifamily
199 Toledo OH 43612 Multifamily
200 Montclair NJ 07042 Retail, Unanchored
201 Parker CO 80134 Retail, Unanchored
202 Port St. Lucie FL 34983 Assisted Living Facility
203 Novato CA 94949 Multifamily
204 Staten Island NY 10309 Industrial
205 West Covina CA 91791 Multifamily
206 Brooklyn NY 11235 Medical Office
207 Aurora CO 80909 Multifamily
208 Rochester NY 14612 Multifamily
209 Boonton NJ 07005 Industrial
210 Bronx NY 10467 Multifamily
211 Bronx NY 10467 Multifamily
212 Ossining NY 10562 Multifamily
213 Bronx NY 10458 Multifamily
214 Novato CA 94949 Multifamily
215 Bronx NY 10453 Multifamily
216 New York NY 10016 Multifamily
217 Milwaukee WI 53204 Retail, Single Tenant
</TABLE>
<TABLE>
<CAPTION>
CSFB
Loan Control Control Loan
# # # Group Property Name
<S> <C> <C> <C> <C>
1 001 005 2 Intell/Reichmann Portfolio Summary
1 001A 005H 2 Edgewater Plaza
1 001B 005E 2 Hurstbourne Place
1 001C 005I 2 Intell Tice Boulevard-SONY
1 001D 005J 2 One Oxmoor Place
1 001E 005G 2 Hurstbourne Plaza
1 001F 005F 2 Hurstbourne Park Office Building
1 001G 005D 2 Steeplechase Place
1 001H 005A 2 Hunnington Office Park
1 001I 005C 2 Two Brittany Place
1 001J 005B 2 One Brittany Place
2 002 006 1 180 Water Street
3 003 007 2 Butera Portfolio Summary
3 003A 007A 2 Girard Place
3 003B 007B 2 Patrick Center
3 003C 007C 2 Deer Park Center
3 003D 007D 2 Girard Business Center
3 003E 007E 2 Old Courthouse Square
3 003F 007F 2 Wedgewood Business Park
3 003G 007G 2 Georgia Pacific
3 003H 007H 2 Gateway West
3 003I 007I 2 Gateway Center
3 003J 007J 2 Westpark
3 003K 007K 2 Radtech Building
3 003L 007L 2 Woodlands Business Center
3 003M 007M 2 Microlog
3 003N 007N 2 Thomas AAA
4 004 008 2 Patriot American Summary
4 004A 008A 2 Chicago Embassy Suites
4 004B 008B 2 Wyndham Greenspoint Hotel
5 005 010 1 L'Enfant Plaza Summary
5 005A 010A 1 L'Enfant Plaza - East Building
5 005B 010B 1 Loews L'Enfant Plaza Hotel
6 006 011 2 260-261 Madison Avenue
7 007 012 2 Trident Center
8 008 002 2 Thurman Multifamily Portfolio Summary
8 008A 002J 2 The Parks at Maryland Apartments
8 008B 002F 2 Villas at Vickery
8 008C 002B 2 Park Hill Apartments
8 008D 002D 2 The Woodlands of Plano Apartments
8 008E 002H 2 Desert Sands Apartments
8 008F 002E 2 Willows on Hunnicut Apartments
8 008G 002C 2 The Encore Apartments
8 008H 002A 2 Oakwood Gardens Apartments
8 008I 002G 2 Turtle Creek Apartments
8 008J 002I 2 Woodlawn Park Apartments
9 009 013 2 Koll Corporate Plaza
10 010 003 2 Pinstripe Multifamily Portfolio Summary
10 010A 003B 2 Covington Walk Apartments
10 010B 003C 2 Oak Tree Apartments
10 010C 003L 2 Sunridge Apartments
10 010D 003J 2 Stradford Oaks Apartments
10 010E 003K 2 Shadowtree Apartments
10 010F 003I 2 Briarwood Apartments
10 010G 003R 2 Wexford Townhomes
10 010H 003H 2 Mediterranean Gardens Apartments
10 010I 003A 2 Azalea Apartments
10 010J 003E 2 Canyon Point Apartments
10 010K 003D 2 Canyon Ridge Apartments
10 010L 003Q 2 Toscana On Skillman Apartments
11 011 014 1 Pearl Highlands Center
12 012 015 2 1133 Connecticut Avenue
13 013 004 2 Garden Variety Apartments Portfolio Summary
13 013A 004E 2 Harbor Island Apartments
13 013B 004A 2 Ski Lodge I Apartments
14 014 016 1 Donatelli Portfolio Summary
14 014A 016D 1 Plaza 500
14 014B 016B 1 Van Buren Office Center
14 014C 016C 1 Reico Distributors
14 014D 016A 1 Standard Warehouse
15 015 018 2 Camco Summary
15 015A 018B 2 Irving Market Center
15 015B 018A 2 North Hills Village
15 015C 018C 2 Northeast Business Park
16 016 019 1 Accor - Texas Summary
16 016A 019E 1 Accor - Texas Motel 6 #1122
16 016B 019D 1 Accor - Texas Motel 6 #1121
16 016C 019B 1 Accor - Texas Motel 6 #298
16 016D 019F 1 Accor - Texas Motel 6 #1208
16 016E 019C 1 Accor - Texas Motel 6 #362
16 016F 019A 1 Accor - Texas Motel 6 #229
17 017 020 1 8484 Wilshire Boulevard
18 018 021 2 Courthouse Square Apartments
19 019 273 1 United Artists - 5 Theaters Summary
19 019A 273B 1 UA Snowden Square
19 019B 273C 1 UA Commerce Crossing
19 019C 273D 1 UA Cinemas 8 at Southlake
19 019D 273E 1 UA Shannon 8
19 019E 273A 1 UA Berkeley Cinema 7
20 020 022 2 Ramblewood Village Apartments
21 021 024 1 Lipkin Portfolio Summary
21 021A 024I 1 Town & Country Shopping Center
21 021B 024H 1 Southgate Shopping Center
21 021C 024G 1 O'Fallon Square
21 021D 024A 1 Crossroads Plaza
21 021E 024E 1 Independence Square
21 021F 024J 1 Steger K-Mart
21 021G 024C 1 Summit Plaza
21 021H 024F 1 K-Mart Plaza
21 021I 024D 1 Grady Plaza Shopping Center
21 021J 024B 1 K-Mart Plaza
22 022 023 2 Grand Union Summary
22 022A 023A 2 Grand Union - Valatie
22 022B 023C 2 Grand Union - Morristown
22 022C 023B 2 Grand Union - Tannersville
23 023 025 1 Accor - Florida Summary
23 023A 025A 1 Accor - Florida Motel 6 #436
23 023B 025B 1 Accor - Florida Motel 6 #483
23 023C 025C 1 Accor - Florida Motel 6 #677
23 023D 025D 1 Accor - Florida Motel 6 #1191
24 024 026 2 Summit Portfolio Summary
24 024A 026A 2 97 Sunfield Avenue
24 024B 026D 2 105 Raider Boulevard
24 024C 026E 2 700 Federal Boulevard
24 024D 026C 2 87 Sunfield Avenue
24 024E 026B 2 503 Newfield Avenue
25 025 028 1 American Restaurant Group, Inc. Summary
25 025A 028G 1 Stuart Anderson's Black Angus
25 025B 028F 1 Stuart Anderson's Black Angus
25 025C 028D 1 Stuart Anderson's Black Angus
25 025D 028C 1 Stuart Anderson's Black Angus
25 025E 028H 1 Stuart Anderson's Cattle Company
25 025F 028E 1 Stuart Anderson's Cattle Company
25 025G 028A 1 Stuart Anderson's Black Angus
25 025H 028B 1 Stuart Anderson's Black Angus
26 026 029 1 Accor - Midwest Summary
26 026A 029B 1 Accor - Midwest Motel 6 #1153
26 026B 029A 1 Accor - Midwest Motel 6 #1195
26 026C 029C 1 Accor - Midwest Motel 6 #1077
26 026D 029D 1 Accor - Midwest Motel 6 #1173
26 026E 029E 1 Accor - Midwest Motel 6 #1236
27 027 030 2 Ventana Canyon Apartments
28 028 031 2 English Village Apartments
29 029 032 1 Accor - East Summary
29 029A 032A 1 Accor - East Motel 6 #1063
29 029B 032C 1 Accor - East Motel 6 #1062
29 029C 032D 1 Accor - East Motel 6 #1219
29 029D 032B 1 Accor - East Motel 6 #403
29 029E 032E 1 Accor - East Motel 6 #1058
30 030 033 1 Cinemark - Austin
31 031 034 1 Town and Country Shopping Center
32 032 036 1 Accor - Southeast Summary
32 032A 036A 1 Accor - Southeast Motel 6 #1068
32 032B 036D 1 Accor - Southeast Motel 6 #459
32 032C 036C 1 Accor - Southeast Motel 6 #496
32 032D 036B 1 Accor - Southeast Motel 6 #1234
33 033 037 1 Regal Cinema
34 034 038 1 Southside Mall
35 035 039 1 Accor - West Summary
35 035A 039A 1 Accor - West Motel 6 #1185
35 035B 039C 1 Accor - West Motel 6 #1043
35 035C 039B 1 Accor - West Motel 6 #675
36 036 041 2 McKnight Place Extended Care
37 037 042 1 Tamarus I and II Apartments
38 038 043 2 Shaw's Shopping Center
39 039 044 1 The Prada Building
40 040 046 2 St. Landry Plaza Shopping Center
41 041 047 1 Garden Ridge
42 042 048 1 Jewelry Theatre Building
43 043 050 1 Holiday Inn - Farmington Hills
44 044 079 2 Whispering Palms-Viscaya Apart
45 045 051 1 1000 Sylvan Avenue
46 046 052 2 K-Mart Plaza
47 047 053 2 Lincoln Plaza Hotel
48 048 055 2 Island Walk Shopping Center
49 049 266 2 Forest Ridge Shopping Center
50 050 056 1 Agawan Stop & Shop
51 051 058 1 Hoyt's - Bellingham
52 052 060 2 Stirling Industrial Park
53 053 999 1 Pamida Summary
53 053A 215 1 Pamida Montana #296
53 053B 216 1 Pamida Nebraska #113
53 053C 223 1 Pamida Nebraska #155
53 053D 224 1 Pamida Wyoming #291
53 053E 235 1 Pamida Kansas #157
54 054 061 2 Bloomfield Multi Summary
54 054A 061L 2 13815-25 Victory Blvd.
54 054B 061G 2 14023-27 Oxnard Street
54 054C 061I 2 14706 Dickens Street
54 054D 061M 2 15405 Vanowen Street
54 054E 061K 2 4437-39 Vista Del Monte
54 054F 061C 2 11564-11604 Sylvan Street
54 054G 061B 2 10745 Hortense Avenue
54 054H 061E 2 250 S. Reno Street
54 054I 061F 2 256 S. Rampart Street
54 054J 061J 2 5722-28 Elmer Ave
54 054K 061H 2 7340 Variel Avenue
54 054L 061D 2 1132 N. Cahuenga
54 054M 061A 2 5714-18 Elmer
55 055 065 2 Wendell Terrace
56 056 067 1 Washington HUD Summary
56 056A 067B 1 McKinley Terrace
56 056B 067A 1 Meadow Park Garden Court
56 056C 067N 1 Chehalis Manor Apartments
56 056D 067D 1 Kennewick Garden Court Apartments
57 057 888 1 Best Buy Summary
57 057A 119 1 Best Buy - Canton, OH
57 057B 136 1 Best Buy - Spartanburg, SC
58 058 069 2 Northpointe Shopping Center
59 059 070 1 U.S. Equities II Summary
59 059A 070L 1 U.S. Post Office - Rincon
59 059B 070C 1 U.S. Post Office - Chapin
59 059C 070D 1 U.S. Post Office - China Grove
59 059D 070J 1 U.S. Post Office - Lyman
59 059E 070E 1 U.S. Post Office - Dallas
59 059F 070B 1 U.S. Post Office - Carrollton
59 059G 070G 1 U.S. Post Office - Grand Isle
59 059H 070M 1 U.S. Post Office - West Union
59 059I 070K 1 U.S. Post Office - Nesbit
59 059J 070I 1 U.S. Post Office - Little Mountain
59 059K 070A 1 U.S. Post Office - Barneveld
59 059L 070F 1 U.S. Post Office - East Berne
59 059M 070H 1 U.S. Post Office - Jonesville
60 060 071 2 East 138th Street
61 061 068 2 St. Charles Plaza
62 062 075 2 PFI - Ignacio Gardens
63 063 077 2 State Farm Building
64 064 078 2 Time Warner Building
65 065 082 2 Sunset Plaza Shopping Center
66 066 084 2 Centro Plaza
67 067 270 2 Sherwood Forest dba Grand Oaks
68 068 086 1 Shoppes of Wilton Manor
69 069 087 1 Essex Portfolio Summary
69 069A 087A 1 Erie Microtel Inn
69 069B 087B 1 Youngstown Microtel Inn
70 070 088 2 Royal Dane Mall
71 071 089 1 29 John Street
72 072 268 2 Warrington Apartments
73 073 090 1 Plaza Diamond Bar
74 074 092 2 Rio Del Oro Racquet Club
75 075 093 2 Century Square Apartments
76 076 095 1 East-West 4 LLC Summary
76 076A 095A 1 312 East 93rd Street
76 076B 095D 1 237 West 18th Street
76 076C 095B 1 349 East 51st Street
76 076D 095C 1 450 West 50th Street
77 077 097 1 Alameda Office
78 078 098 2 Jefferson Plaza Summary
78 078A 098B 2 South Winton Court
78 078B 098A 2 Jefferson Plaza
79 079 080 2 Bloomfield - Lex
79 079A 080E 2 20615 Vanowen Street
79 079B 080C 2 7410 Woodman Street
79 079C 080F 2 11422-26 & 11442 Tiara Street
79 079D 080D 2 248 S. Occidental Blvd.
79 079E 080B 2 15202-222 Victory Blvd.
79 079F 080A 2 5611 Fulcher Avenue
80 080 099 1 Carroll Pool Summary
80 080A 099B 1 Dorian Place
80 080B 099A 1 Wellsprings Assisted Living Facility
80 080C 099C 1 Indianhead Residential Care Facility
81 081 265 2 Copacabana Mobile Home Park
82 082 100 1 Budgetel St. Charles
83 083 101 2 942 Hyde Park
84 084 102 1 LG International Building
85 085 104 2 Homestead Gardens Apartments
86 086 105 2 Westwood Portfolio Summary
86 086A 105E 2 Hampton West Apartments
86 086B 105B 2 Sturbridge Commons
86 086C 105D 2 Sutton Place West Apartments
86 086D 105C 2 Linda Court Apartments
86 086E 105A 2 James Court Apartments
86 086F 105F 2 Stratford Apartments
87 087 106 2 Cherry Hill Plaza
88 088 110 2 PFI - Lincoln Villa
89 089 107 1 Bayscene Mobilehome Park
90 090 096 2 Edgewater Square
91 091 108 1 Economic Press Building
92 092 109 1 Commerce Security Center
93 093 111 2 PFI - Northgate
94 094 112 2 Derrer Field Estates Apartments
95 095 113 1 Cedarwood Valley Office Park
96 096 116 1 One Finderne Avenue
97 097 117 1 Best Western Chateau Suite Hotel
98 098 118 2 Affordable Warehouses
99 099 267 2 Burke-Lewis Apartments
100 100 122 1 Rite Aid - Burton
101 101 123 2 AMP Building
102 102 124 1 Holiday Inn Express
103 103 125 2 Anchorage Trade Center Building
104 104 128 1 Quality Inn - Nautilus
105 105 129 2 Rain Tree Plaza
106 106 130 1 Comfort Inn - Greensboro
107 107 131 2 1270 Gerard Avenue
108 108 133 1 Suburban Lodge of Baymeadows
109 109 134 1 Comfort Inn
110 110 135 2 PFI - Creekside
111 111 132 2 PFI - Fairway
112 112 137 1 Franklin Court
113 113 139 1 West Lancaster Plaza
114 114 140 1 733 Yonkers Avenue
115 115 142 2 Bari Manor
116 116 144 1 Eckerd's - Berwick #5923
117 117 145 1 244 West 39th Street
118 118 143 2 690 Gerard Avenue
119 119 147 2 Lake Pointe Apartments
120 120 148 2 230 East 167th Street
121 121 146 2 2300 Grand Concourse
122 122 149 1 CVS - Forest Hill
123 123 160 1 Office Depot - Dallas
124 124 154 1 8000 North Federal Highway
125 125 155 1 Portofino Beach Hotel
126 126 156 1 CVS - Auburn
127 127 158 2 PFI - Ignacio Pines
128 128 159 1 CVS - Montgomery
129 129 157 2 984 Sheridan Avenue
130 130 162 2 Shop Rite Center
131 131 163 2 111 East 167th Street
132 132 164 1 CVS - Cranston
133 133 152 2 PFI - Oak Hill Apartments
134 134 168 2 176 East 176th Street
135 135 166 1 CVS - Bessemer
136 136 167 2 2585-93 Grand Concourse
137 137 170 1 2899-2901 Third Avenue
138 138 169 1 CVS - Middlefield
139 139 161 2 1210 Sherman Avenue
140 140 153 2 215 Mount Hope Place
141 141 165 2 Hudson View Estates
142 142 173 1 Belleair Bazaar
143 143 171 2 Chateau Thierry Apartments
144 144 172 1 CVS - Colonial Heights
145 145 175 1 CVS - Augusta
146 146 176 1 Safeguard Self Storage
147 147 177 1 CVS - New Haven #6496
148 148 178 1 CVS - Huntersville
149 149 272 1 Buena Park Manor MHP
150 150 179 1 Comfort Inn - Petersburg
151 151 180 1 CVS - Ringgold
152 152 181 2 Continental Pak
153 153 183 2 2544 Valentine Avenue
154 154 184 1 CVS - Cleveland
155 155 186 1 CVS - Madison
156 156 185 2 PFI - Westview
157 157 188 1 CVS - Painesville
158 158 189 1 CVS - Pelzer
159 159 211 2 PFI - Ignacio Hills III
160 160 191 1 Walgreens Plaza
161 161 193 1 Best Western - Wright Patterson
162 162 195 2 Clarion Hotel
163 163 194 2 7600 Medley Industrial Building
164 164 197 1 CVS - Smyrna
165 165 199 1 Citrus Plaza
166 166 200 2 Cane Village/Indian Summer Apartments
167 167 198 2 2908-10 Valentine Avenue
168 168 202 1 416-418 Knickerbocker
169 169 196 2 2 Minerva Place
170 170 201 2 PFI - Northern Apartments
171 171 203 2 Sparta Green Townhouses
172 172 204 1 CVS - Owensboro
173 173 205 1 CVS - Barnwell
174 174 207 2 48 Hill Street
175 175 206 1 Galaxy Hotel
176 176 208 2 Elmwood Galleria
177 177 209 1 CVS - Marysville
178 178 182 2 1791 Grand Concourse
179 179 187 2 2505 Olinville Avenue
180 180 212 1 Econo Lodge - Biloxi
181 181 217 1 CVS - Bedford
182 182 220 1 Ingram Park Plaza Shopping Center
183 183 221 1 Rite Aid - Detroit
184 184 222 2 Powell Street Warehouses
185 185 218 2 3041 Holland Avenue
186 186 214 2 3031 Holland Avenue
187 187 219 2 1240 Sherman Avenue
188 188 226 1 2174 Pelham Associates
189 189 227 1 CVS - Cairo
190 190 229 2 PFI - Strawberry
191 191 228 1 CVS - Hopewell
192 192 233 1 54-64 Broad Street
193 193 236 2 PFI - Via Casitas
194 194 234 1 Best Western - Celebration
195 195 237 1 Rite Aid - Dearborn
196 196 239 1 Gateway Retail Center
197 197 246 2 PFI - Ignacio Hills I
198 198 230 2 1945 Loring Place South
199 199 240 2 Three Pines Apartments
200 200 241 1 363 Bloomfield Avenue
201 201 248 2 Parker Plaza Shopping Center
202 202 243 1 Nature's Edge Assisted Living Facility
203 203 244 2 PFI - Country Club
204 204 245 2 202 Industrial Loop
205 205 249 2 Stonegate Apartments
206 206 250 1 1655 East 13th Street
207 207 251 2 Villa Serena
208 208 271 2 Lake Village Apartments
209 209 255 1 AeroPanel Building
210 210 253 2 344 East 209th Street
211 211 254 2 2935 Holland Avenue
212 212 258 2 Sherwood Townhouses
213 213 256 2 2885 Briggs Avenue
214 214 260 2 PFI - Ignacio Hills IV
215 215 259 2 116 Henwood Place
216 216 261 1 398 Third Avenue
217 217 263 1 SpinCycle 173 - Milwaukee
</TABLE>
Loan # Original Principal Loan Cut-off Date
Balance Principal Loan Balance
1 86,909,466 86,666,577.57
1 20,768,955.20
1 15,956,972.38
1 14,621,660.89
1 9,547,477.20
1 7,344,213.23
1 6,209,198.46
1 4,873,886.96
1 3,204,747.59
1 2,069,732.82
1 2,069,732.82
2 75,000,000 74,948,322.00
3 83,000,000 82,871,007.99
3 10,603,573.85
3 8,645,990.99
3 8,401,293.13
3 8,319,727.17
3 8,156,595.27
3 7,585,633.66
3 7,340,935.74
3 6,525,276.22
3 4,322,995.49
3 2,936,374.30
3 2,854,808.34
3 2,773,242.39
3 2,283,846.68
3 2,120,714.77
4 81,569,558 81,569,558.00
4 41,370,451.00
4 40,199,107.00
5 75,000,000 74,961,791.67
5 59,372,392.52
5 15,589,399.15
6 75,000,000 74,355,366.22
7 60,000,000 60,000,000.00
8 55,745,250 55,745,250.00
8 11,962,500.00
8 8,772,500.00
8 7,975,000.00
8 6,539,500.00
8 4,944,500.00
8 4,466,000.00
8 3,509,000.00
8 3,269,750.00
8 2,392,500.00
8 1,914,000.00
9 54,900,000 54,819,238.33
10 52,709,690 52,709,690.00
10 7,341,400.00
10 5,545,100.00
10 5,232,700.00
10 4,998,400.00
10 4,764,100.00
10 4,373,600.00
10 4,217,400.00
10 4,178,350.00
10 3,748,800.00
10 3,100,570.00
10 2,631,970.00
10 2,577,300.00
11 50,000,000 49,972,866.92
12 46,200,000 46,021,342.08
13 44,088,900 44,088,900.00
13 28,409,100.00
13 15,679,800.00
14 41,841,021 41,540,422.10
14 25,252,536.23
14 8,585,862.32
14 4,861,113.22
14 2,840,910.33
15 37,000,000 36,953,805.64
15 18,775,605.64
15 15,105,828.17
15 3,072,371.83
16 30,291,596 30,176,866.34
16 7,754,121.14
16 5,778,548.87
16 5,531,602.34
16 4,494,426.90
16 3,704,198.00
16 2,913,969.09
17 23,700,000 23,700,000.00
18 23,577,591 23,564,879.99
19 23,302,898 23,302,898.37
19 7,390,844.63
19 7,390,844.63
19 2,956,337.85
19 2,782,435.63
19 2,782,435.63
20 22,232,427 22,220,441.19
21 19,770,000 19,716,965.92
21 3,329,686.30
21 2,350,366.80
21 2,317,722.82
21 2,089,214.93
21 1,925,995.02
21 1,860,707.05
21 1,795,419.08
21 1,697,487.13
21 1,240,471.37
21 1,109,895.43
22 19,700,000 19,662,220.38
22 8,426,665.88
22 7,262,004.74
22 3,973,549.76
23 19,213,232 19,143,664.35
23 6,149,778.18
23 5,257,068.45
23 4,513,143.67
23 3,223,674.05
24 17,800,000 17,790,685.69
24 7,067,769.97
24 3,811,052.44
24 3,741,760.57
24 2,251,985.53
24 918,117.18
25 17,866,864 17,787,585.20
25 3,085,109.63
25 2,680,188.99
25 2,651,266.09
25 2,265,627.38
25 1,937,834.49
25 1,846,245.29
25 1,730,553.68
25 1,590,759.65
26 15,681,646 15,623,817.01
26 3,915,867.84
26 3,767,164.00
26 2,805,545.82
26 2,706,409.93
26 2,428,829.42
27 15,325,000 15,316,464.66
28 15,230,992 15,222,780.76
29 14,493,210 14,443,020.00
29 4,397,874.60
29 3,298,405.95
29 2,548,768.24
29 2,348,864.84
29 1,849,106.37
30 14,413,144 14,388,230.45
31 14,000,000 13,993,156.63
32 13,812,715 13,763,265.33
32 4,879,884.23
32 3,784,400.02
32 2,659,038.96
32 2,439,942.12
33 13,571,358 13,473,026.33
34 13,250,000 13,243,338.19
35 13,157,902 13,112,290.14
35 6,252,835.87
35 3,733,036.34
35 3,126,417.93
36 12,800,000 12,774,778.02
37 12,675,000 12,657,152.53
38 12,500,000 12,493,327.36
39 12,000,000 11,936,969.11
40 10,800,000 10,776,766.78
41 10,683,961 10,627,253.84
42 10,100,000 10,094,356.59
43 10,000,000 9,979,093.14
44 9,925,000 9,920,464.41
45 9,650,000 9,616,048.02
46 9,300,000 9,281,231.88
47 9,000,000 8,996,492.76
48 8,700,000 8,700,000.00
49 8,050,000 8,050,000.00
50 8,000,000 7,984,278.28
51 7,999,990 7,943,633.06
52 7,800,000 7,764,365.58
53 7,684,218 7,662,520.65
53 1,674,168 1,669,441.06
53 1,635,084 1,630,467.47
53 1,529,487 1,525,167.83
53 1,502,011 1,497,770.26
53 1,343,468 1,339,674.03
54 7,442,000 7,438,144.73
54 1,034,093.47
54 903,813.97
54 830,531.76
54 614,756.35
54 614,756.35
54 602,542.65
54 578,115.24
54 569,972.78
54 537,402.90
54 350,126.13
54 297,200.09
54 260,558.98
54 244,274.05
55 7,000,000 7,000,000.00
56 6,900,000 6,798,451.76
56 2,706,536.13
56 2,041,370.47
56 1,408,316.26
56 642,228.91
57 6,667,500 6,645,905.69
57 3,642,500 3,630,702.88
57 3,025,000 3,015,202.81
58 6,600,000 6,597,114.00
59 6,560,000 6,514,619.60
59 1,113,572.81
59 957,665.82
59 687,473.03
59 636,424.11
59 632,033.32
59 603,706.40
59 492,004.65
59 288,922.97
59 285,542.35
59 249,819.93
59 210,303.52
59 200,742.19
59 156,408.52
60 6,306,000 6,300,581.02
61 6,300,000 6,300,000.00
62 6,231,000 6,228,111.22
63 6,000,000 5,984,381.61
64 6,000,000 5,974,670.49
65 5,800,000 5,783,843.99
66 5,625,000 5,612,164.23
67 5,600,000 5,600,000.00
68 5,500,000 5,482,155.63
69 5,350,000 5,328,398.91
69 3,330,249.32
69 1,998,149.59
70 5,300,000 5,278,249.11
71 5,250,000 5,240,983.59
72 5,200,000 5,197,108.50
73 5,200,000 5,178,746.06
74 4,850,000 4,827,366.27
75 4,800,000 4,793,647.36
76 4,750,000 4,738,569.33
76 1,450,972.08
76 1,328,784.95
76 1,328,784.95
76 630,027.35
77 4,600,000 4,600,000.00
78 4,600,000 4,591,080.24
78 2,435,133.78
78 2,155,946.46
79 4,558,000 4,555,638.76
79 1,096,151.99
79 971,765.95
79 761,864.50
79 637,478.46
79 629,704.33
79 458,673.53
80 4,505,000 4,498,950.39
80 2,133,417.29
80 1,546,300.85
80 819,232.24
81 4,450,000 4,442,094.97
82 4,420,000 4,417,461.94
83 4,400,000 4,390,626.02
84 4,350,000 4,340,557.55
85 4,276,375 4,274,069.54
86 4,210,000 4,201,726.43
86 1,183,584.91
86 961,662.74
86 961,662.74
86 466,036.56
86 369,870.28
86 258,909.20
87 4,100,000 4,098,160.09
88 4,065,000 4,063,115.42
89 4,050,238 4,035,586.34
90 4,000,000 4,000,000.00
91 4,000,000 3,996,282.11
92 4,000,000 3,981,725.95
93 3,864,000 3,862,208.60
94 3,864,000 3,854,487.36
95 3,840,000 3,832,453.56
96 3,800,000 3,790,432.18
97 3,750,000 3,730,682.71
98 3,700,000 3,683,096.48
99 3,645,000 3,642,973.17
100 3,578,954 3,560,238.27
101 3,560,000 3,558,023.63
102 3,500,000 3,496,225.86
103 3,500,000 3,488,642.57
104 3,300,000 3,290,225.00
105 3,230,000 3,228,459.35
106 3,225,000 3,215,828.36
107 3,200,000 3,195,382.85
108 3,150,000 3,144,316.84
109 3,150,000 3,137,997.78
110 3,041,000 3,039,590.15
111 3,015,000 3,013,602.21
112 3,000,000 2,998,788.70
113 2,925,000 2,923,402.31
114 2,900,000 2,898,018.20
115 2,885,000 2,883,444.65
116 2,793,838 2,781,678.35
117 2,775,000 2,759,884.10
118 2,740,000 2,740,000.00
119 2,750,000 2,736,597.16
120 2,720,000 2,720,000.00
121 2,720,000 2,720,000.00
122 2,673,833 2,671,964.23
123 2,526,384 2,524,380.24
124 2,500,000 2,495,191.27
125 2,500,000 2,495,993.00
126 2,487,366 2,485,161.56
127 2,480,000 2,478,850.23
128 2,428,261 2,427,441.62
129 2,400,000 2,400,000.00
130 2,400,000 2,398,617.12
131 2,400,000 2,396,503.38
132 2,374,166 2,373,332.21
133 2,303,000 2,301,932.30
134 2,300,000 2,300,000.00
135 2,301,350 2,299,742.65
136 2,300,000 2,296,681.43
137 2,275,000 2,273,396.14
138 2,253,543 2,251,090.98
139 2,250,000 2,250,000.00
140 2,250,000 2,250,000.00
141 2,240,000 2,238,792.38
142 2,236,000 2,236,000.00
143 2,220,000 2,215,063.18
144 2,215,236 2,213,198.04
145 2,198,416 2,196,407.99
146 2,180,000 2,175,519.42
147 2,175,024 2,173,888.48
148 2,173,698 2,172,173.58
149 2,150,000 2,144,931.12
150 2,150,000 2,143,219.83
151 2,118,307 2,116,349.38
152 2,100,000 2,098,968.10
153 2,100,000 2,096,970.00
154 2,092,344 2,090,865.96
155 2,079,870 2,077,610.51
156 2,037,000 2,036,055.62
157 2,018,150 2,015,924.16
158 2,013,530 2,012,127.39
159 2,007,000 2,006,069.53
160 2,000,000 1,995,780.44
161 2,000,000 1,994,075.75
162 2,000,000 1,991,585.21
163 2,000,000 1,991,039.49
164 1,973,764 1,971,568.63
165 1,930,000 1,930,000.00
166 1,920,000 1,915,682.73
167 1,860,000 1,860,000.00
168 1,850,000 1,845,637.56
169 1,840,000 1,840,000.00
170 1,830,000 1,829,151.59
171 1,824,000 1,823,016.66
172 1,815,483 1,814,530.32
173 1,807,234 1,805,560.68
174 1,800,000 1,799,101.72
175 1,800,000 1,797,416.58
176 1,800,000 1,796,855.80
177 1,787,026 1,785,062.29
178 1,777,000 1,777,000.00
179 1,735,000 1,735,000.00
180 1,725,000 1,716,503.21
181 1,624,600 1,623,093.42
182 1,600,000 1,598,772.98
183 1,604,436 1,598,696.81
184 1,600,000 1,580,198.98
185 1,580,000 1,580,000.00
186 1,548,000 1,548,000.00
187 1,525,000 1,525,000.00
188 1,500,000 1,496,462.89
189 1,444,868 1,444,113.55
190 1,431,000 1,430,336.57
191 1,403,424 1,402,925.95
192 1,350,000 1,347,461.16
193 1,339,000 1,338,379.22
194 1,350,000 1,334,555.87
195 1,333,342 1,321,705.12
196 1,300,000 1,297,292.08
197 1,285,000 1,284,404.25
198 1,280,000 1,280,000.00
199 1,260,000 1,255,594.89
200 1,250,000 1,248,673.14
201 1,200,000 1,198,882.11
202 1,200,000 1,194,636.87
203 1,121,000 1,120,480.29
204 1,106,000 1,106,000.00
205 1,050,000 1,047,473.14
206 1,040,000 1,038,100.55
207 1,000,000 999,068.42
208 900,000 898,267.30
209 875,000 873,729.72
210 855,000 855,000.00
211 825,000 825,000.00
212 697,000 696,624.24
213 680,000 680,000.00
214 583,000 582,729.71
215 560,000 560,000.00
216 499,995 498,503.62
217 335,000 334,497.86
Annual
Loan U/W Net Debt
# Cash Flow Service DSCR Value LTV Lockbox
1 8,849,705 7,053,294 1.25 121,000,000 72 Hard
1 1,704,294 22,300,000
1 1,790,187 23,900,000
1 1,528,878 21,900,000
1 869,841 14,300,000
1 938,454 11,000,000
1 593,647 9,300,000
1 573,543 7,300,000
1 429,364 4,800,000
1 219,176 3,100,000
1 202,321 3,100,000
2 7,147,248 6,303,624 1.13 101,000,000 74 Hard
3 8,409,823 6,433,577 1.31 101,600,000 82 Hard
3 1,034,792 13,000,000
3 912,278 10,600,000
3 814,468 10,300,000
3 778,965 10,200,000
3 1,000,505 10,000,000
3 802,254 9,300,000
3 714,027 9,000,000
3 655,483 8,000,000
3 415,877 5,300,000
3 255,690 3,600,000
3 266,714 3,500,000
3 293,789 3,400,000
3 258,662 2,800,000
3 206,319 2,600,000
4 10,863,564 7,717,620 1.41 116,000,000 70 Hard
4 6,007,361 62,000,000
4 4,856,203 54,000,000
5 8,085,519 6,379,500 1.27 226,000,000 66 Hard
5 6,502,649 179,000,000
5 1,582,870 47,000,000
6 9,659,470 6,280,387 1.54 130,000,000 50 Hard
7 7,139,453 5,398,250 1.32 83,000,000 72 Hard
8 5,631,611 4,709,452 1.20 69,900,000 80 Hard
8 1,034,836 15,000,000
8 755,928 11,000,000
8 753,101 10,000,000
8 850,373 8,200,000
8 550,275 6,200,000
8 529,715 5,600,000
8 288,768 4,400,000
8 408,898 4,100,000
8 190,325 3,000,000
8 269,392 2,400,000
9 5,475,114 4,356,498 1.26 66,425,000 83 Hard
10 5,333,317 4,453,003 1.20 67,490,000 78 Hard
10 840,161 9,400,000
10 606,155 7,100,000
10 675,895 6,700,000
10 480,235 6,400,000
10 547,146 6,100,000
10 398,276 5,600,000
10 465,762 5,400,000
10 231,366 5,350,000
10 359,150 4,800,000
10 221,664 3,970,000
10 235,748 3,370,000
10 271,759 3,300,000
11 5,784,629 4,174,764 1.39 78,000,000 64 Hard
12 4,511,632 3,917,067 1.15 62,500,000 74 Hard
13 4,453,775 3,724,704 1.20 52,300,000 84 Hard
13 2,738,466 33,700,000
13 1,715,309 18,600,000
14 5,421,026 3,428,901 1.58 65,800,000 63 Modified
14 3,244,590 40,000,000
14 1,106,205 13,600,000
14 659,650 7,700,000
14 410,581 4,500,000
15 3,988,626 3,134,976 1.27 43,300,000 85 Hard
15 2,038,881 22,000,000
15 1,648,713 17,700,000
15 301,032 3,600,000
16 2,526,553 30,550,000 Hard
16 7,850,000
16 5,850,000
16 5,600,000
16 4,550,000
16 3,750,000
16 2,950,000
17 2,637,660 2,132,605 1.24 37,000,000 64 Hard
18 2,611,074 1,972,486 1.32 28,500,000 83 Hard
19 2,333,784 26,800,000 Hard
19 8,500,000
19 8,500,000
19 3,400,000
19 3,200,000
19 3,200,000
20 2,478,892 1,859,951 1.33 27,250,000 82 Hard
21 2,387,569 1,586,340 1.51 30,200,000 65 Springing
21 370,406 5,100,000
21 280,088 3,600,000
21 273,356 3,550,000
21 268,377 3,200,000
21 244,965 2,950,000
21 269,291 2,850,000
21 191,806 2,750,000
21 262,482 2,600,000
21 136,232 1,900,000
21 90,566 1,700,000
22 2,224,719 1,812,063 1.23 28,700,000 69 Hard
22 1,066,374 12,300,000
22 791,039 10,600,000
22 367,306 5,800,000
23 1,590,894 19,300,000 Hard
23 6,200,000
23 5,300,000
23 4,550,000
23 3,250,000
24 2,087,046 1,502,308 1.39 25,675,000 69 Hard
24 881,646 10,200,000
24 414,272 5,500,000
24 471,389 5,400,000
24 213,055 3,250,000
24 106,684 1,325,000
25 1,787,973 18,450,000 Hard
25 3,200,000
25 2,780,000
25 2,750,000
25 2,350,000
25 2,010,000
25 1,915,000
25 1,795,000
25 1,650,000
26 1,302,275 15,760,000 Hard
26 3,950,000
26 3,800,000
26 2,830,000
26 2,730,000
26 2,450,000
27 1,624,023 1,269,525 1.28 19,110,000 80 Springing
28 1,612,964 1,274,215 1.27 18,250,000 83 Hard
29 1,191,737 14,450,000 Hard
29 4,400,000
29 3,300,000
29 2,550,000
29 2,350,000
29 1,850,000
30 1,431,119 15,000,000 Hard
31 1,397,614 1,204,734 1.16 18,700,000 75 Hard
32 1,141,661 13,820,000 Hard
32 4,900,000
32 3,800,000
32 2,670,000
32 2,450,000
33 1,284,742 13,500,000 Hard
34 1,416,795 1,134,200 1.25 17,000,000 78 Hard
35 1,082,109 14,050,000 Hard
35 6,700,000
35 4,000,000
35 3,350,000
36 1,777,474 1,043,659 1.70 17,070,000 75 Springing
37 1,284,161 1,024,213 1.25 14,350,000 88 Springing
38 1,253,327 1,048,822 1.19 15,400,000 81 Hard
39 1,330,747 1,133,783 1.17 17,000,000 70 Hard
40 1,144,767 893,864 1.28 13,500,000 80 Hard
41 1,050,059 13,100,000 Hard
42 1,141,092 835,860 1.37 12,300,000 82 Springing
43 1,321,109 884,449 1.49 13,750,000 73 Springing
44 1,041,321 869,766 1.20 12,000,000 83 Springing
45 1,153,449 773,923 1.49 14,000,000 69 Modified
46 919,080 751,493 1.22 11,800,000 79 Springing
47 1,078,339 820,497 1.31 13,300,000 68 Springing
48 914,829 729,984 1.25 10,600,000 82 Hard
49 822,563 698,742 1.18 9,350,000 86 Springing
50 944,172 652,937 1.45 10,200,000 78 Springing
51 799,348 7,600,000 Hard
52 1,060,842 649,651 1.63 11,400,000 68 Springing
53 729,562 7,700,000 Hard
53 158,950 1,700,000
53 155,240 1,700,000
53 145,214 1,500,000
53 142,605 1,500,000
53 127,553 1,300,000
54 771,615 629,939 1.22 9,135,000 81 Springing
54 102,892 1,270,000
54 99,813 1,110,000
54 76,967 1,020,000
54 85,100 755,000
54 60,366 755,000
54 60,691 740,000
54 47,181 710,000
54 55,487 700,000
54 52,579 660,000
54 38,256 430,000
54 36,446 365,000
54 27,493 320,000
54 28,344 300,000
55 1,088,696 553,224 1.97 15,440,000 45 None
56 1,125,295 981,742 1.15 7,410,000 92 Hard
56 519,142 2,950,000
56 315,655 2,225,000
56 166,041 1,535,000
56 124,457 700,000
57 772,641 573,173 1.35 9,550,000 70 Springing
57 415,519 313,128 1.33 5,150,000 71 Springing
57 357,122 260,045 1.37 4,400,000 69 Springing
58 691,876 585,011 1.18 8,250,000 80 Springing
59 712,994 673,264 1.06 7,890,000 83 Springing
59 113,576 1,190,000
59 101,847 1,070,000
59 72,630 805,000
59 68,012 750,000
59 68,787 755,000
59 63,624 675,000
59 54,170 590,000
59 38,937 505,000
59 31,302 335,000
59 33,408 465,000
59 23,411 260,000
59 22,194 250,000
59 21,096 240,000
60 741,317 576,549 1.29 8,100,000 78 Springing
61 692,193 528,612 1.31 7,850,000 80 Hard
62 696,388 543,966 1.28 10,040,000 62 Springing
63 646,336 486,779 1.33 7,500,000 80 Hard
64 665,471 518,104 1.28 7,500,000 80 Modified
65 614,116 458,851 1.34 7,300,000 79 Hard
66 787,867 477,076 1.65 9,000,000 62 Springing
67 597,438 493,090 1.21 7,200,000 78 Hard
68 606,321 455,171 1.33 7,300,000 75 Springing
69 718,286 471,097 1.52 7,200,000 74 Springing
69 503,448 4,500,000
69 214,838 2,700,000
70 612,604 463,399 1.32 7,200,000 73 Modified
71 544,415 449,600 1.21 8,500,000 62 Springing
72 586,037 430,981 1.36 7,800,000 67 Springing
73 569,854 455,463 1.25 7,200,000 72 Springing
74 743,704 487,533 1.53 7,400,000 65 Springing
75 597,196 397,633 1.50 6,100,000 79 Springing
76 523,931 435,456 1.20 6,205,000 76 Hard
76 152,658 1,900,000
76 146,832 1,740,000
76 150,903 1,740,000
76 73,538 825,000
77 502,604 408,893 1.23 5,800,000 79 Hard
78 709,028 377,310 1.88 7,400,000 62 Modified
78 398,239 3,925,000
78 310,789 3,475,000
79 475,944 385,819 1.23 5,860,000 78 Springing
79 113,398 1,410,000
79 98,648 1,250,000
79 77,868 980,000
79 66,057 820,000
79 64,986 810,000
79 54,987 590,000
80 584,927 471,543 1.24 6,590,000 68 Springing
80 275,475 3,125,000
80 199,902 2,265,000
80 109,550 1,200,000
81 456,077 376,677 1.21 5,750,000 77 Hard
82 532,885 436,949 1.22 5,800,000 76 Hard
83 495,151 385,734 1.28 5,600,000 78 Hard
84 414,970 358,588 1.16 5,000,000 87 Hard
85 471,940 357,759 1.32 5,600,000 76 Hard
86 462,783 343,608 1.35 5,680,000 74 Springing
86 136,313 1,600,000
86 92,319 1,300,000
86 105,467 1,300,000
86 62,957 630,000
86 36,486 500,000
86 29,241 350,000
87 427,905 361,012 1.19 6,250,000 66 Springing
88 457,833 354,875 1.29 6,730,000 60 Springing
89 391,214 341,837 1.14 5,200,000 78 Hard
90 482,166 363,630 1.33 5,800,000 69 Hard
91 483,335 355,028 1.36 6,000,000 67 Springing
92 765,679 333,155 2.30 6,750,000 59 Springing
93 425,573 337,327 1.26 5,280,000 73 Springing
94 393,934 319,778 1.23 4,800,000 80 Springing
95 428,980 313,410 1.37 4,900,000 78 Hard
96 541,483 312,001 1.74 5,700,000 67 Springing
97 673,516 332,253 2.03 7,900,000 47 Springing
98 535,235 308,168 1.74 5,900,000 62 Springing
99 389,635 302,101 1.29 5,100,000 71 Springing
100 292,594 3,600,000 Hard
101 403,686 295,202 1.37 4,500,000 79 Springing
102 643,362 292,308 2.20 6,000,000 58 Springing
103 385,874 318,536 1.21 5,200,000 67 Springing
104 532,899 295,221 1.81 5,360,000 61 Hard
105 394,974 279,827 1.41 4,075,000 79 Springing
106 644,514 293,584 2.20 4,300,000 75 Springing
107 354,105 255,992 1.38 4,000,000 80 Springing
108 377,931 297,529 1.27 4,375,000 72 Springing
109 456,740 284,275 1.61 4,400,000 71 Springing
110 342,619 265,479 1.29 4,500,000 68 Springing
111 360,509 263,210 1.37 5,680,000 53 Springing
112 332,484 271,216 1.23 4,000,000 75 Springing
113 312,850 243,744 1.28 5,500,000 53 Springing
114 372,675 235,346 1.58 4,500,000 64 Springing
115 290,974 241,357 1.21 3,950,000 73 Springing
116 229,576 2,900,000 Hard
117 275,113 239,623 1.15 3,700,000 75 Springing
118 304,990 236,921 1.29 3,425,000 80 Springing
119 320,178 233,005 1.37 3,700,000 74 Springing
120 296,757 235,192 1.26 3,400,000 80 Springing
121 291,853 235,192 1.24 3,500,000 78 Springing
122 179,426 2,810,000 Hard
123 219,000 2,600,000 Hard
124 286,192 205,671 1.39 3,415,000 73 Springing
125 361,850 219,085 1.65 3,450,000 72 Hard
126 163,999 2,480,000 Hard
127 263,776 216,504 1.22 3,900,000 64 Springing
128 208,299 2,410,000 Hard
129 256,952 207,522 1.24 3,000,000 80 Springing
130 273,716 220,451 1.24 3,200,000 75 Springing
131 283,074 191,220 1.48 3,100,000 77 Springing
132 159,134 2,790,000 Hard
133 248,659 201,052 1.24 3,550,000 65 Springing
134 251,813 198,875 1.27 2,900,000 79 Springing
135 154,651 2,330,000 Hard
136 261,615 183,994 1.42 2,900,000 79 Springing
137 292,346 222,593 1.31 3,250,000 70 Springing
138 153,824 2,260,000 Hard
139 244,800 194,552 1.26 2,850,000 79 Springing
140 257,100 194,552 1.32 2,900,000 78 Springing
141 254,734 187,397 1.36 2,550,000 88 Springing
142 262,429 192,864 1.36 2,950,000 76 Hard
143 261,388 190,672 1.37 2,775,000 80 Springing
144 147,614 2,240,000 Hard
145 148,044 2,215,000 Hard
146 354,199 194,342 1.82 3,100,000 70 Springing
147 146,245 2,190,000 Hard
148 145,071 2,200,000 Hard
149 279,630 238,782 1.17 2,940,000 73 Hard
150 278,372 216,927 1.28 3,000,000 71 Springing
151 140,210 2,140,000 Hard
152 329,734 216,363 1.52 3,200,000 66 Springing
153 263,335 167,995 1.57 2,700,000 78 Springing
154 138,235 2,100,000 Hard
155 142,293 2,250,000 Hard
156 221,165 177,830 1.24 3,050,000 67 Springing
157 135,196 2,030,000 Hard
158 135,890 2,090,000 Hard
159 207,509 175,211 1.18 3,000,000 67 Springing
160 228,193 158,868 1.44 2,500,000 80 Hard
161 358,588 178,922 2.00 3,300,000 60 Hard
162 337,518 193,093 1.75 2,755,000 72 Springing
163 276,213 168,099 1.64 2,850,000 70 Springing
164 130,605 1,980,000 Hard
165 272,515 166,464 1.64 2,800,000 69 Hard
166 255,053 164,020 1.56 2,400,000 80 Springing
167 209,882 160,830 1.30 2,400,000 78 Springing
168 238,590 160,379 1.49 2,600,000 71 None
169 214,592 159,100 1.35 2,300,000 80 Springing
170 212,790 159,759 1.33 2,900,000 63 Springing
171 188,436 152,595 1.23 2,300,000 79 Springing
172 122,419 1,840,000 Hard
173 119,308 1,840,000 Hard
174 209,383 153,999 1.36 2,300,000 78 Springing
175 291,544 182,963 1.59 2,900,000 62 Springing
176 185,734 153,255 1.21 2,380,000 76 Springing
177 120,344 1,810,000 Hard
178 194,312 153,653 1.26 2,300,000 77 Springing
179 202,450 150,021 1.35 2,300,000 75 Springing
180 237,890 168,662 1.41 2,300,000 75 Springing
181 107,048 1,630,000 Hard
182 187,009 152,282 1.23 2,200,000 73 Springing
183 147,500 1,700,000 Hard
184 189,487 152,334 1.24 2,350,000 67 Springing
185 171,811 136,619 1.26 2,000,000 79 Springing
186 167,886 133,852 1.25 2,000,000 77 Springing
187 169,309 131,863 1.28 2,100,000 73 Springing
188 212,728 130,037 1.64 2,350,000 64 None
189 97,095 1,620,000 Hard
190 160,900 124,926 1.29 2,300,000 62 Springing
191 92,801 1,410,000 Hard
192 189,996 125,249 1.52 1,800,000 75 Springing
193 150,854 116,895 1.29 2,050,000 65 Springing
194 382,984 151,190 2.53 3,550,000 38 Springing
195 118,363 1,600,000 Hard
196 167,836 113,712 1.48 1,950,000 67 Springing
197 135,895 112,181 1.21 1,900,000 68 Springing
198 139,225 110,678 1.26 1,620,000 79 Springing
199 149,008 101,306 1.47 1,600,000 78 Springing
200 140,151 109,051 1.29 1,750,000 71 Springing
201 167,956 106,415 1.58 2,200,000 54 Springing
202 149,817 113,056 1.33 1,750,000 68 Modified
203 116,044 97,863 1.19 1,800,000 62 Springing
204 119,534 99,708 1.20 1,475,000 75 Springing
205 137,274 87,584 1.57 1,425,000 74 Springing
206 116,412 87,177 1.34 1,400,000 74 Hard
207 119,065 88,679 1.34 1,250,000 80 Springing
208 108,801 82,642 1.32 1,125,000 80 Springing
209 133,205 88,481 1.51 1,140,000 77 Springing
210 102,934 73,930 1.39 1,230,000 70 Springing
211 87,872 71,336 1.23 1,040,000 79 Springing
212 73,895 58,311 1.27 960,000 73 Springing
213 80,740 58,798 1.37 980,000 69 Springing
214 62,148 50,896 1.22 900,000 65 Springing
215 60,605 48,422 1.25 800,000 70 Springing
216 113,316 54,683 2.07 1,800,000 28 None
217 42,507 34,094 1.25 450,000 74 Hard
<TABLE>
<CAPTION>
CSFB
Loan Control Control Loan
# # # Group Property Name Ownership
<S> <C> <C> <C> <C> <C>
1 001 005 2 Intell/Reichmann Portfolio Summary
1 001A 005H 2 Edgewater Plaza Fee Simple
1 001B 005E 2 Hurstbourne Place Fee Simple
1 001C 005I 2 Intell Tice Boulevard-SONY Fee Simple
1 001D 005J 2 One Oxmoor Place Both Fee Simple and Leasehold
1 001E 005G 2 Hurstbourne Plaza Fee Simple
1 001F 005F 2 Hurstbourne Park Office Building Fee Simple
1 001G 005D 2 Steeplechase Place Fee Simple
1 001H 005A 2 Hunnington Office Park Fee Simple
1 001I 005C 2 Two Brittany Place Fee Simple
1 001J 005B 2 One Brittany Place Fee Simple
2 002 006 1 180 Water Street Fee Simple
3 003 007 2 Butera Portfolio Summary
3 003A 007A 2 Girard Place Fee Simple
3 003B 007B 2 Patrick Center Fee Simple
3 003C 007C 2 Deer Park Center Fee Simple
3 003D 007D 2 Girard Business Center Fee Simple
3 003E 007E 2 Old Courthouse Square Fee Simple
3 003F 007F 2 Wedgewood Business Park Fee Simple
3 003G 007G 2 Georgia Pacific Fee Simple
3 003H 007H 2 Gateway West Fee Simple
3 003I 007I 2 Gateway Center Fee Simple
3 003J 007J 2 Westpark Fee Simple
3 003K 007K 2 Radtech Building Fee Simple
3 003L 007L 2 Woodlands Business Center Fee Simple
3 003M 007M 2 Microlog Fee Simple
3 003N 007N 2 Thomas AAA Fee Simple
4 004 008 2 Patriot American Summary
4 004A 008A 2 Chicago Embassy Suites Leasehold
4 004B 008B 2 Wyndham Greenspoint Hotel Fee Simple
5 005 010 1 L'Enfant Plaza Summary
5 005A 010A 1 L'Enfant Plaza - East Building Both Fee Simple and Leasehold
5 005B 010B 1 Loews L'Enfant Plaza Hotel Both Fee Simple and Leasehold
6 006 011 2 260-261 Madison Avenue Fee Simple
7 007 012 2 Trident Center Fee Simple
8 008 002 2 Thurman Multifamily Portfolio Summary
8 008A 002J 2 The Parks at Maryland Apartments Fee Simple
8 008B 002F 2 Villas at Vickery Fee Simple
8 008C 002B 2 Park Hill Apartments Fee Simple
8 008D 002D 2 The Woodlands of Plano Apartments Fee Simple
8 008E 002H 2 Desert Sands Apartments Fee Simple
8 008F 002E 2 Willows on Hunnicut Apartments Fee Simple
8 008G 002C 2 The Encore Apartments Fee Simple
8 008H 002A 2 Oakwood Gardens Apartments Fee Simple
8 008I 002G 2 Turtle Creek Apartments Fee Simple
8 008J 002I 2 Woodlawn Park Apartments Fee Simple
9 009 013 2 Koll Corporate Plaza Fee Simple
10 010 003 2 Pinstripe Multifamily Portfolio Summary
10 010A 003B 2 Covington Walk Apartments Fee Simple
10 010B 003C 2 Oak Tree Apartments Fee Simple
10 010C 003L 2 Sunridge Apartments Fee Simple
10 010D 003J 2 Stradford Oaks Apartments Fee Simple
10 010E 003K 2 Shadowtree Apartments Fee Simple
10 010F 003I 2 Briarwood Apartments Fee Simple
10 010G 003R 2 Wexford Townhomes Fee Simple
10 010H 003H 2 Mediterranean Gardens Apartments Fee Simple
10 010I 003A 2 Azalea Apartments Fee Simple
10 010J 003E 2 Canyon Point Apartments Fee Simple
10 010K 003D 2 Canyon Ridge Apartments Fee Simple
10 010L 003Q 2 Toscana On Skillman Apartments Fee Simple
11 011 014 1 Pearl Highlands Center Fee Simple
12 012 015 2 1133 Connecticut Avenue Fee Simple
13 013 004 2 Garden Variety Apartments Portfolio
Summary
13 013A 004E 2 Harbor Island Apartments Fee Simple
13 013B 004A 2 Ski Lodge I Apartments Fee Simple
14 014 016 1 Donatelli Portfolio Summary
14 014A 016D 1 Plaza 500 Fee Simple
14 014B 016B 1 Van Buren Office Center Fee Simple
14 014C 016C 1 Reico Distributors Fee Simple
14 014D 016A 1 Standard Warehouse Fee Simple
15 015 018 2 Camco Summary
15 015A 018B 2 Irving Market Center Fee Simple
15 015B 018A 2 North Hills Village Fee Simple
15 015C 018C 2 Northeast Business Park Fee Simple
16 016 019 1 Accor - Texas Summary
16 016A 019E 1 Accor - Texas Motel 6 #1122 Fee Simple
16 016B 019D 1 Accor - Texas Motel 6 #1121 Fee Simple
16 016C 019B 1 Accor - Texas Motel 6 #298 Fee Simple
16 016D 019F 1 Accor - Texas Motel 6 #1208 Fee Simple
16 016E 019C 1 Accor - Texas Motel 6 #362 Fee Simple
16 016F 019A 1 Accor - Texas Motel 6 #229 Fee Simple
17 017 020 1 8484 Wilshire Boulevard Fee Simple
18 018 021 2 Courthouse Square Apartments Fee Simple
19 019 273 1 United Artists - 5 Theaters Summary
19 019A 273B 1 UA Snowden Square Fee Simple
19 019B 273C 1 UA Commerce Crossing Fee Simple
19 019C 273D 1 UA Cinemas 8 at Southlake Fee Simple
19 019D 273E 1 UA Shannon 8 Fee Simple
19 019E 273A 1 UA Berkeley Cinema 7 Fee Simple
20 020 022 2 Ramblewood Village Apartments Fee Simple
21 021 024 1 Lipkin Portfolio Summary
21 021A 024I 1 Town & Country Shopping Center Fee Simple
21 021B 024H 1 Southgate Shopping Center Fee Simple
21 021C 024G 1 O'Fallon Square Fee Simple
21 021D 024A 1 Crossroads Plaza Fee Simple
21 021E 024E 1 Independence Square Fee Simple
21 021F 024J 1 Steger K-Mart Fee Simple
21 021G 024C 1 Summit Plaza Fee Simple
21 021H 024F 1 K-Mart Plaza Fee Simple
21 021I 024D 1 Grady Plaza Shopping Center Fee Simple
21 021J 024B 1 K-Mart Plaza Both Fee Simple and Leasehold
22 022 023 2 Grand Union Summary
22 022A 023A 2 Grand Union - Valatie Fee Simple
22 022B 023C 2 Grand Union - Morristown Fee Simple
22 022C 023B 2 Grand Union - Tannersville Fee Simple
23 023 025 1 Accor - Florida Summary
23 023A 025A 1 Accor - Florida Motel 6 #436 Fee Simple
23 023B 025B 1 Accor - Florida Motel 6 #483 Fee Simple
23 023C 025C 1 Accor - Florida Motel 6 #677 Fee Simple
23 023D 025D 1 Accor - Florida Motel 6 #1191 Fee Simple
24 024 026 2 Summit Portfolio Summary
24 024A 026A 2 97 Sunfield Avenue Fee Simple
24 024B 026D 2 105 Raider Boulevard Fee Simple
24 024C 026E 2 700 Federal Boulevard Fee Simple
24 024D 026C 2 87 Sunfield Avenue Fee Simple
24 024E 026B 2 503 Newfield Avenue Fee Simple
25 025 028 1 American Restaurant Group, Inc. Summary
25 025A 028G 1 Stuart Anderson's Black Angus Fee Simple
25 025B 028F 1 Stuart Anderson's Black Angus Fee Simple
25 025C 028D 1 Stuart Anderson's Black Angus Fee Simple
25 025D 028C 1 Stuart Anderson's Black Angus Fee Simple
25 025E 028H 1 Stuart Anderson's Cattle Company Fee Simple
25 025F 028E 1 Stuart Anderson's Cattle Company Fee Simple
25 025G 028A 1 Stuart Anderson's Black Angus Fee Simple
25 025H 028B 1 Stuart Anderson's Black Angus Fee Simple
26 026 029 1 Accor - Midwest Summary
26 026A 029B 1 Accor - Midwest Motel 6 #1153 Fee Simple
26 026B 029A 1 Accor - Midwest Motel 6 #1195 Fee Simple
26 026C 029C 1 Accor - Midwest Motel 6 #1077 Fee Simple
26 026D 029D 1 Accor - Midwest Motel 6 #1173 Fee Simple
26 026E 029E 1 Accor - Midwest Motel 6 #1236 Fee Simple
27 027 030 2 Ventana Canyon Apartments Fee Simple
28 028 031 2 English Village Apartments Fee Simple
29 029 032 1 Accor - East Summary
29 029A 032A 1 Accor - East Motel 6 #1063 Fee Simple
29 029B 032C 1 Accor - East Motel 6 #1062 Fee Simple
29 029C 032D 1 Accor - East Motel 6 #1219 Fee Simple
29 029D 032B 1 Accor - East Motel 6 #403 Fee Simple
29 029E 032E 1 Accor - East Motel 6 #1058 Fee Simple
30 030 033 1 Cinemark - Austin Fee Simple
31 031 034 1 Town and Country Shopping Center Leasehold
32 032 036 1 Accor - Southeast Summary
32 032A 036A 1 Accor - Southeast Motel 6 #1068 Fee Simple
32 032B 036D 1 Accor - Southeast Motel 6 #459 Fee Simple
32 032C 036C 1 Accor - Southeast Motel 6 #496 Fee Simple
32 032D 036B 1 Accor - Southeast Motel 6 #1234 Fee Simple
33 033 037 1 Regal Cinema Fee Simple
34 034 038 1 Southside Mall Fee Simple
35 035 039 1 Accor - West Summary
35 035A 039A 1 Accor - West Motel 6 #1185 Fee Simple
35 035B 039C 1 Accor - West Motel 6 #1043 Fee Simple
35 035C 039B 1 Accor - West Motel 6 #675 Fee Simple
36 036 041 2 McKnight Place Extended Care Fee Simple
37 037 042 1 Tamarus I and II Apartments Fee Simple
38 038 043 2 Shaw's Shopping Center Fee Simple
39 039 044 1 The Prada Building Fee Simple
40 040 046 2 St. Landry Plaza Shopping Center Fee Simple
41 041 047 1 Garden Ridge Fee Simple
42 042 048 1 Jewelry Theatre Building Fee Simple
43 043 050 1 Holiday Inn - Farmington Hills Fee Simple
44 044 079 2 Whispering Palms-Viscaya Apart Fee Simple
45 045 051 1 1000 Sylvan Avenue Fee Simple
46 046 052 2 K-Mart Plaza Fee Simple
47 047 053 2 Lincoln Plaza Hotel Fee Simple
48 048 055 2 Island Walk Shopping Center Fee Simple
49 049 266 2 Forest Ridge Shopping Center Fee Simple
50 050 056 1 Agawan Stop & Shop Fee Simple
51 051 058 1 Hoyt's - Bellingham Leasehold
52 052 060 2 Stirling Industrial Park Fee Simple
53 053 999 1 Pamida Summary Fee Simple
53 053A 215 1 Pamida Montana #296 Fee Simple
53 053B 216 1 Pamida Nebraska #113 Fee Simple
53 053C 223 1 Pamida Nebraska #155 Fee Simple
53 053D 224 1 Pamida Wyoming #291 Fee Simple
53 053E 235 1 Pamida Kansas #157 Fee Simple
54 054 061 2 Bloomfield Multi Summary
54 054A 061L 2 13815-25 Victory Blvd. Fee Simple
54 054B 061G 2 14023-27 Oxnard Street Fee Simple
54 054C 061I 2 14706 Dickens Street Fee Simple
54 054D 061M 2 15405 Vanowen Street Fee Simple
54 054E 061K 2 4437-39 Vista Del Monte Fee Simple
54 054F 061C 2 11564-11604 Sylvan Street Fee Simple
54 054G 061B 2 10745 Hortense Avenue Fee Simple
54 054H 061E 2 250 S. Reno Street Fee Simple
54 054I 061F 2 256 S. Rampart Street Fee Simple
54 054J 061J 2 5722-28 Elmer Ave Fee Simple
54 054K 061H 2 7340 Variel Avenue Fee Simple
54 054L 061D 2 1132 N. Cahuenga Fee Simple
54 054M 061A 2 5714-18 Elmer Fee Simple
55 055 065 2 Wendell Terrace Fee Simple
56 056 067 1 Washington HUD Summary
56 056A 067B 1 McKinley Terrace Fee Simple
56 056B 067A 1 Meadow Park Garden Court Fee Simple
56 056C 067N 1 Chehalis Manor Apartments Fee Simple
56 056D 067D 1 Kennewick Garden Court Apartments Fee Simple
57 057 888 1 Best Buy Summary Fee Simple
57 057A 119 1 Best Buy - Canton, OH Fee Simple
57 057B 136 1 Best Buy - Spartanburg, SC Fee Simple
58 058 069 2 Northpointe Shopping Center Leasehold
59 059 070 1 U.S. Equities II Summary
59 059A 070L 1 U.S. Post Office - Rincon Fee Simple
59 059B 070C 1 U.S. Post Office - Chapin Fee Simple
59 059C 070D 1 U.S. Post Office - China Grove Fee Simple
59 059D 070J 1 U.S. Post Office - Lyman Fee Simple
59 059E 070E 1 U.S. Post Office - Dallas Fee Simple
59 059F 070B 1 U.S. Post Office - Carrollton Fee Simple
59 059G 070G 1 U.S. Post Office - Grand Isle Fee Simple
59 059H 070M 1 U.S. Post Office - West Union Fee Simple
59 059I 070K 1 U.S. Post Office - Nesbit Fee Simple
59 059J 070I 1 U.S. Post Office - Little Mountain Fee Simple
59 059K 070A 1 U.S. Post Office - Barneveld Leasehold
59 059L 070F 1 U.S. Post Office - East Berne Leasehold
59 059M 070H 1 U.S. Post Office - Jonesville Fee Simple
60 060 071 2 East 138th Street Fee Simple
61 061 068 2 St. Charles Plaza Fee Simple
62 062 075 2 PFI - Ignacio Gardens Fee Simple
63 063 077 2 State Farm Building Fee Simple
64 064 078 2 Time Warner Building Fee Simple
65 065 082 2 Sunset Plaza Shopping Center Fee Simple
66 066 084 2 Centro Plaza Fee Simple
67 067 270 2 Sherwood Forest dba Grand Oaks Fee Simple
68 068 086 1 Shoppes of Wilton Manor Fee Simple
69 069 087 1 Essex Portfolio Summary
69 069A 087A 1 Erie Microtel Inn Fee Simple
69 069B 087B 1 Youngstown Microtel Inn Fee Simple
70 070 088 2 Royal Dane Mall Fee Simple
71 071 089 1 29 John Street Fee Simple
72 072 268 2 Warrington Apartments Fee Simple
73 073 090 1 Plaza Diamond Bar Fee Simple
74 074 092 2 Rio Del Oro Racquet Club Both Fee Simple and Leasehold
75 075 093 2 Century Square Apartments Fee Simple
76 076 095 1 East-West 4 LLC Summary
76 076A 095A 1 312 East 93rd Street Fee Simple
76 076B 095D 1 237 West 18th Street Fee Simple
76 076C 095B 1 349 East 51st Street Fee Simple
76 076D 095C 1 450 West 50th Street Fee Simple
77 077 097 1 Alameda Office Fee Simple
78 078 098 2 Jefferson Plaza Summary
78 078A 098B 2 South Winton Court Fee Simple
78 078B 098A 2 Jefferson Plaza Fee Simple
79 079 080 2 Bloomfield - Lex
79 079A 080E 2 20615 Vanowen Street Fee Simple
79 079B 080C 2 7410 Woodman Street Fee Simple
79 079C 080F 2 11422-26 & 11442 Tiara Street Fee Simple
79 079D 080D 2 248 S. Occidental Blvd. Fee Simple
79 079E 080B 2 15202-222 Victory Blvd. Fee Simple
79 079F 080A 2 5611 Fulcher Avenue Fee Simple
80 080 099 1 Carroll Pool Summary
80 080A 099B 1 Dorian Place Fee Simple
80 080B 099A 1 Wellsprings Assisted Living Facility Fee Simple
80 080C 099C 1 Indianhead Residential Care Facility Fee Simple
81 081 265 2 Copacabana Mobile Home Park Fee Simple
82 082 100 1 Budgetel St. Charles Fee Simple
83 083 101 2 942 Hyde Park Fee Simple
84 084 102 1 LG International Building Fee Simple
85 085 104 2 Homestead Gardens Apartments Fee Simple
86 086 105 2 Westwood Portfolio Summary
86 086A 105E 2 Hampton West Apartments Fee Simple
86 086B 105B 2 Sturbridge Commons Fee Simple
86 086C 105D 2 Sutton Place West Apartments Fee Simple
86 086D 105C 2 Linda Court Apartments Fee Simple
86 086E 105A 2 James Court Apartments Fee Simple
86 086F 105F 2 Stratford Apartments Fee Simple
87 087 106 2 Cherry Hill Plaza Fee Simple
88 088 110 2 PFI - Lincoln Villa Fee Simple
89 089 107 1 Bayscene Mobilehome Park Fee Simple
90 090 096 2 Edgewater Square Fee Simple
91 091 108 1 Economic Press Building Fee Simple
92 092 109 1 Commerce Security Center Fee Simple
93 093 111 2 PFI - Northgate Fee Simple
94 094 112 2 Derrer Field Estates Apartments Fee Simple
95 095 113 1 Cedarwood Valley Office Park Fee Simple
96 096 116 1 One Finderne Avenue Fee Simple
97 097 117 1 Best Western Chateau Suite Hotel Leasehold
98 098 118 2 Affordable Warehouses Fee Simple
99 099 267 2 Burke-Lewis Apartments Fee Simple
100 100 122 1 Rite Aid - Burton Fee Simple
101 101 123 2 AMP Building Fee Simple
102 102 124 1 Holiday Inn Express Fee Simple
103 103 125 2 Anchorage Trade Center Building Leasehold
104 104 128 1 Quality Inn - Nautilus Fee Simple
105 105 129 2 Rain Tree Plaza Fee Simple
106 106 130 1 Comfort Inn - Greensboro Fee Simple
107 107 131 2 1270 Gerard Avenue Fee Simple
108 108 133 1 Suburban Lodge of Baymeadows Fee Simple
109 109 134 1 Comfort Inn Fee Simple
110 110 135 2 PFI - Creekside Fee Simple
111 111 132 2 PFI - Fairway Fee Simple
112 112 137 1 Franklin Court Fee Simple
113 113 139 1 West Lancaster Plaza Fee Simple
114 114 140 1 733 Yonkers Avenue Fee Simple
115 115 142 2 Bari Manor Fee Simple
116 116 144 1 Eckerd's - Berwick #5923 Fee Simple
117 117 145 1 244 West 39th Street Fee Simple
118 118 143 2 690 Gerard Avenue Fee Simple
119 119 147 2 Lake Pointe Apartments Fee Simple
120 120 148 2 230 East 167th Street Fee Simple
121 121 146 2 2300 Grand Concourse Fee Simple
122 122 149 1 CVS - Forest Hill Fee Simple
123 123 160 1 Office Depot - Dallas Leasehold
124 124 154 1 8000 North Federal Highway Fee Simple
125 125 155 1 Portofino Beach Hotel Fee Simple
126 126 156 1 CVS - Auburn Fee Simple
127 127 158 2 PFI - Ignacio Pines Fee Simple
128 128 159 1 CVS - Montgomery Fee Simple
129 129 157 2 984 Sheridan Avenue Fee Simple
130 130 162 2 Shop Rite Center Fee Simple
131 131 163 2 111 East 167th Street Fee Simple
132 132 164 1 CVS - Cranston Fee Simple
133 133 152 2 PFI - Oak Hill Apartments Fee Simple
134 134 168 2 176 East 176th Street Fee Simple
135 135 166 1 CVS - Bessemer Fee Simple
136 136 167 2 2585-93 Grand Concourse Fee Simple
137 137 170 1 2899-2901 Third Avenue Fee Simple
138 138 169 1 CVS - Middlefield Fee Simple
139 139 161 2 1210 Sherman Avenue Fee Simple
140 140 153 2 215 Mount Hope Place Fee Simple
141 141 165 2 Hudson View Estates Fee Simple
142 142 173 1 Belleair Bazaar Fee Simple
143 143 171 2 Chateau Thierry Apartments Fee Simple
144 144 172 1 CVS - Colonial Heights Fee Simple
145 145 175 1 CVS - Augusta Fee Simple
146 146 176 1 Safeguard Self Storage Fee Simpe
147 147 177 1 CVS - New Haven #6496 Fee Simple
148 148 178 1 CVS - Huntersville Fee Simple
149 149 272 1 Buena Park Manor MHP Leasehold
150 150 179 1 Comfort Inn - Petersburg Fee Simple
151 151 180 1 CVS - Ringgold Fee Simple
152 152 181 2 Continental Pak Both Fee Simple and Leasehold
153 153 183 2 2544 Valentine Avenue Fee Simple
154 154 184 1 CVS - Cleveland Fee Simple
155 155 186 1 CVS - Madison Fee Simple
156 156 185 2 PFI - Westview Fee Simple
157 157 188 1 CVS - Painesville Fee Simple
158 158 189 1 CVS - Pelzer Fee Simple
159 159 211 2 PFI - Ignacio Hills III Fee Simple
160 160 191 1 Walgreens Plaza Fee Simple
161 161 193 1 Best Western - Wright Patterson Fee Simple
162 162 195 2 Clarion Hotel Fee Simple
163 163 194 2 7600 Medley Industrial Building Fee Simple
164 164 197 1 CVS - Smyrna Fee Simple
165 165 199 1 Citrus Plaza Fee Simple
166 166 200 2 Cane Village/Indian Summer Apartments Fee Simple
167 167 198 2 2908-10 Valentine Avenue Fee Simple
168 168 202 1 416-418 Knickerbocker Fee Simple
169 169 196 2 2 Minerva Place Fee Simple
170 170 201 2 PFI - Northern Apartments Fee Simple
171 171 203 2 Sparta Green Townhouses Fee Simple
172 172 204 1 CVS - Owensboro Fee Simple
173 173 205 1 CVS - Barnwell Fee Simple
174 174 207 2 48 Hill Street Fee Simple
175 175 206 1 Galaxy Hotel Fee Simple
176 176 208 2 Elmwood Galleria Fee Simple
177 177 209 1 CVS - Marysville Fee Simple
178 178 182 2 1791 Grand Concourse Fee Simple
179 179 187 2 2505 Olinville Avenue Fee Simple
180 180 212 1 Econo Lodge - Biloxi Fee Simple
181 181 217 1 CVS - Bedford Fee Simple
182 182 220 1 Ingram Park Plaza Shopping Center Fee Simple
183 183 221 1 Rite Aid - Detroit Fee Simple
184 184 222 2 Powell Street Warehouses Fee Simple
185 185 218 2 3041 Holland Avenue Fee Simple
186 186 214 2 3031 Holland Avenue Fee Simple
187 187 219 2 1240 Sherman Avenue Fee Simple
188 188 226 1 2174 Pelham Associates Fee Simple
189 189 227 1 CVS - Cairo Fee Simple
190 190 229 2 PFI - Strawberry Fee Simple
191 191 228 1 CVS - Hopewell Leasehold
192 192 233 1 54-64 Broad Street Fee Simple
193 193 236 2 PFI - Via Casitas Fee Simple
194 194 234 1 Best Western - Celebration Fee Simple
195 195 237 1 Rite Aid - Dearborn Fee Simple
196 196 239 1 Gateway Retail Center Fee Simple
197 197 246 2 PFI - Ignacio Hills I Fee Simple
198 198 230 2 1945 Loring Place South Fee Simple
199 199 240 2 Three Pines Apartments Fee Simple
200 200 241 1 363 Bloomfield Avenue Fee Simple
201 201 248 2 Parker Plaza Shopping Center Fee Simple
202 202 243 1 Nature's Edge Assisted Living Facility Fee Simple
203 203 244 2 PFI - Country Club Fee Simple
204 204 245 2 202 Industrial Loop Fee Simple
205 205 249 2 Stonegate Apartments Fee Simple
206 206 250 1 1655 East 13th Street Fee Simple
207 207 251 2 Villa Serena Fee Simple
208 208 271 2 Lake Village Apartments Fee Simple
209 209 255 1 AeroPanel Building Fee Simple
210 210 253 2 344 East 209th Street
211 211 254 2 2935 Holland Avenue Fee Simple
212 212 258 2 Sherwood Townhouses Fee Simple
213 213 256 2 2885 Briggs Avenue Fee Simple
214 214 260 2 PFI - Ignacio Hills IV Fee Simple
215 215 259 2 116 Henwood Place Fee Simple
216 216 261 1 398 Third Avenue Fee Simple
217 217 263 1 SpinCycle 173 - Milwaukee Fee Simple
</TABLE>
<TABLE>
<CAPTION>
Loan # CSFB
Control
# Property Name/Location Tenant/Lease Guarantor
<S> <C> <C> <C>
16 19 Accor - Texas Portfolio Accor, S.A.
19 273 United Artists - 5 Theater Portfolio (5) United Artists Theatre Circuit, Inc.
23 25 Accor - Florida Portfolio Accor, S.A.
25 28 American Restaurant Group, Inc. Summary American Restaurant Group, Inc
26 29 Accor - Midwest Portfolio Accor, S.A.
29 32 Accor - East Portfolio Accor, S.A.
30 33 Cinemark - Austin, TX Cinemark USA, Inc.
32 36 Accor - Southeast Portfolio Accor, S.A.
33 37 Regal Cinemas - Palm Beach, FL Regal Cinemas, Inc.
35 39 Accor - West Portfolio Accor, S.A.
41 47 Garden Ridge - Hilliard, OH Garden Ridge Corporation
51 58 Hoyts Cinemas - Bellingham, MA Hoyts Cinemas Limited
53 999 Pamida Summary Pamida, Inc.
100 122 Rite Aid - Burton, MI Rite Aid Corporation
116 144 Eckerd (Fay's) - Berwick, PA Eckerd Corporation
122 149 CVS - Forest Hill, VA (6) CVS Corporation
123 160 Office Depot - Dallas, TX Office Depot, Inc.
126 156 CVS - Auburn, ME (6) CVS Corporation
128 159 CVS - Montgomery, AL (6) CVS Corporation
132 164 CVS - Cranston, RI (6) CVS Corporation
135 166 CVS - Bessemer, AL (6) CVS Corporation
138 169 CVS - Middlefield, OH (6) CVS Corporation
144 172 CVS - Colonial Heights, VA (6) CVS Corporation
145 175 CVS - Augusta, GA (6) CVS Corporation
147 177 CVS - New Haven, IN (6) CVS Corporation
148 178 CVS - Huntersville, NC (6) CVS Corporation
151 180 CVS - Ringgold, GA (6) CVS Corporation
154 184 CVS - Cleveland, OH (6) CVS Corporation
155 186 CVS - Madison, NC (6) CVS Corporation
157 188 CVS - Painesville, OH (6) CVS Corporation
158 189 CVS - Pelzer, SC (6) CVS Corporation
164 197 CVS - Smyrna, TN (6) CVS Corporation
172 204 CVS - Owensboro, KY (6) CVS Corporation
173 205 CVS - Barnwell, SC (6) CVS Corporation
177 209 CVS - Marysville, OH (6) CVS Corporation
181 217 CVS - Bedford, OH (6) CVS Corporation
183 221 Rite Aid - Detroit, MI Rite Aid Corporation
189 227 CVS - Cairo, NY (6) CVS Corporation
191 228 CVS - Hopewell, PA (6) CVS Corporation
195 237 Rite Aid - Dearborn, MI Rite Aid Corporation
Cut off Date Substantial
Principal Leased Leased RVI Completion
Loan # Lease Type Balance Value LTV Insurance Date*
<S> <C> <C> <C> <C> <C> <C>
16 Bondable Lease 30,176,866 30,550,000 99 Yes
19 Bondable Lease 23,302,898 26,800,000 87
23 Bondable Lease 19,143,664 19,300,000 99 Yes
25 Bondable Lease 17,787,585 18,450,000 96
26 Bondable Lease 15,623,817 15,760,000 99 Yes
29 Bondable Lease 14,443,020 14,450,000 100 Yes
30 Bondable Lease 14,388,230 15,000,000 96
32 Bondable Lease 13,763,265 13,820,000 100 Yes
33 Triple Net Lease 13,473,026 13,500,000 100
35 Bondable Lease 13,112,290 14,050,000 93 Yes
41 Triple Net Lease 10,627,254 13,100,000 81
51 Triple Net Lease 7,943,633 7,600,000 105
53 Triple Net Lease 7,662,521 7,700,000 100
100 Double Net Lease 3,560,238 3,600,000 99
116 Double Net Lease 2,781,678 2,900,000 96
122 Bondable Lease 2,671,964 2,810,000 95 02/01/99
123 Triple Net Lease 2,524,380 2,600,000 97
126 Bondable Lease 2,485,162 2,480,000 100 01/01/99
128 Bondable Lease 2,427,442 2,410,000 101 04/01/99
132 Bondable Lease 2,373,332 2,790,000 85 03/01/99
135 Bondable Lease 2,299,743 2,330,000 99 02/01/99
138 Bondable Lease 2,251,091 2,260,000 100 11/01/98
144 Bondable Lease 2,213,198 2,240,000 99 12/01/98
145 Bondable Lease 2,196,408 2,215,000 99 01/01/99
147 Bondable Lease 2,173,888 2,190,000 99 03/01/99
148 Bondable Lease 2,172,174 2,200,000 99 01/01/99
151 Bondable Lease 2,116,349 2,140,000 99 12/01/98
154 Bondable Lease 2,090,866 2,100,000 100 02/01/99
155 Bondable Lease 2,077,611 2,250,000 92 11/01/98
157 Bondable Lease 2,015,924 2,030,000 99 11/01/98
158 Bondable Lease 2,012,127 2,090,000 96 01/01/99
164 Bondable Lease 1,971,569 1,980,000 100 11/01/98
172 Bondable Lease 1,814,530 1,840,000 99 02/01/99
173 Bondable Lease 1,805,561 1,840,000 98 12/01/98
177 Bondable Lease 1,785,062 1,810,000 99 11/01/98
181 Bondable Lease 1,623,093 1,630,000 100 12/01/98
183 Triple Net Lease 1,598,697 1,700,000 94
189 Bondable Lease 1,444,114 1,620,000 89 04/01/99
191 Bondable Lease 1,402,926 1,410,000 99 03/01/99
195 Double Net Lease 1,321,705 1,600,000 83
258,658,901
Failure of Failure of
Completion Construction Completion
Termination Extension Termination
Loan # Date** Option*** Date (2)****
<S> <C> <C> <C>
16
19
23
25
26
29
30
32
33
35
41
51
53
100
116
122 03/03/99 05/02/99 06/01/99
123
126 01/31/99 04/01/99 05/01/99
128 05/01/99 06/30/99 07/30/99
132 03/31/99 05/30/99 06/29/99
135 03/03/99 05/02/99 06/01/99
138 12/01/98 01/30/99 03/01/99
144 12/31/98 03/01/99 03/31/99
145 01/31/99 04/01/99 05/01/99
147 03/31/99 05/30/99 06/29/99
148 01/31/99 04/01/99 05/01/99
151 12/31/98 03/01/99 03/31/99
154 03/03/99 05/02/99 06/01/99
155 12/01/98 01/30/99 03/01/99
157 12/01/98 01/30/99 03/01/99
158 01/31/99 04/01/99 05/01/99
164 12/01/98 01/30/99 03/01/99
172 03/03/99 05/02/99 06/01/99
173 12/31/98 03/01/99 03/31/99
177 12/01/98 01/30/99 03/01/99
181 12/31/98 03/01/99 03/31/99
183
189 05/01/99 06/30/99 07/30/99
191 03/31/99 05/30/99 06/29/99
195
</TABLE>
<PAGE>
EXHIBIT C-1
FORM OF INVESTMENT QIB INVESTMENT REPRESENTATION LETTER -
QUALIFIED INSTITUTIONAL BUYER
The Chase Manhattan Bank
450 West 33rd Street, 15th Floor
New York, New York 10001
Attention: Structured Finance Services Group
Credit Suisse First Boston Mortgage Securities Corp.
Eleven Madison Avenue
New York, New York 10010
Attention: Principal Transactions Group
Re: Transfer of Credit Suisse First Boston Mortgage Securities Corp.
Commercial Mortgage Pass-Through Certificates, Series 1998-C2
Ladies and Gentlemen:
This letter is delivered pursuant to the Confidential Offering Circular
(the "Offering Circular") dated as of November 20, 1998 and to Section 5.02 of
the Pooling and Servicing Agreement dated as of November 11, 1998 (the
"Pooling and Servicing Agreement"), by and among Credit Suisse First Boston
Mortgage Securities Corp., as Depositor, First Union National Bank, as
Servicer, Lennar Partners, Inc., as Special Servicer, and The Chase Manhattan
Bank, as Trustee, on behalf of the holders of Credit Suisse First Boston
Mortgage Securities Corp. Commercial Mortgage Pass-Through Certificates,
Series 1998-C2 (the "Certificates") in connection with the transfer by Credit
Suisse First Boston Corporation (the "Seller") to the undersigned (the
"Purchaser") of $____________ aggregate Certificate Balance of Class ____
Certificates (the "Certificate"). Capitalized terms used and not otherwise
defined herein shall have the respective meanings assigned to such terms in
the Pooling and Servicing Agreement.
In connection with such transfer, unless otherwise directed by the
Depositor, the Purchaser hereby represents and warrants to you and the
addressees hereof as follows:
1. The Purchaser is a "qualified institutional buyer" within the meaning
of Rule 144A ("Rule 144A") promulgated under the Securities Act of 1933, as
amended (the "Securities Act"). The Purchaser is aware that the transfer is
being made in reliance on Rule 144A, and the Purchaser has had the opportunity
to obtain the information required to be provided pursuant to paragraph
(d)(4)(i) of Rule 144A.
2. The Purchaser's intention is to acquire the Certificate (a) for
investment for the Purchaser's own account, (b) for resale to "qualified
institutional buyers" in transactions under Rule 144A, or (c) for resale to
persons that are not "U.S. persons" within the meaning of Regulation S under
the Securities Act, and not in any event with the view to, or for resale in
connection with, any distribution thereof. The Purchaser understands that the
Certificate (and any subsequent Certificate) has not been registered under the
Securities Act, by reason of a specified exemption from the registration
provisions of the Securities Act which depends upon, among other things, the
bona fide nature of the Purchaser's investment intent (or intent to resell to
only certain investors in certain exempted transactions), as expressed herein.
3. The Purchaser has reviewed the Offering Circular and the agreements
and other materials referred to therein and has had the opportunity to ask
questions and receive answers concerning the terms and conditions of the
transactions contemplated by the Offering Circular.
4. The Purchaser acknowledges that the Certificate (and any Certificate
issued on transfer or exchange thereof) has not been registered or qualified
under the Securities Act or the securities laws of any State or any other
jurisdiction, and that the Certificate cannot be resold unless it is
registered or qualified thereunder, or unless an exemption from such
registration or qualification is available.
5. The Purchaser hereby undertakes to be bound by the terms and
conditions of the Pooling and Servicing Agreement in its capacity as an owner
of a Certificate or Certificates, as the case may be (each, a
"Certificateholder"), in all respects as if it were a signatory thereto. This
undertaking is made for the benefit of the Trust, the Certificate Registrar
and all Certificateholders present and future.
6. The Purchaser will not sell or otherwise transfer any portion of the
Certificate or Certificates, except in compliance with Section 5.02 of the
Pooling and Servicing Agreement.
7. Check one of the following:1
[ ] The Purchaser is a U.S. Person (as defined below) and it has
attached hereto an Internal Revenue Service ("IRS") Form W-9 (or successor
form).
[ ] The Purchaser is not a U.S. Person and under applicable law in
effect on the date hereof, no taxes will be required to be withheld by the
Trustee (or its agent) with respect to distributions to be made on the
Certificate. The Purchaser has attached hereto either (i) a duly executed IRS
Form W-8 (or successor form), which identifies such Purchaser as the
beneficial owner of the Certificate and states that such Purchaser is not a
U.S. Person, or (ii) two duly executed copies of IRS Form 4224 (or successor
form), which identify such Purchaser as the beneficial owner of the
Certificate and state that interest and original issue discount on the
Certificate and Permitted Investments is, or is expected to be, effectively
connected with a U.S. trade or business. The Purchaser agrees to provide to
the Certificate Registrar updated IRS Forms W-8 or IRS Forms 4224, as the case
may be, any applicable successor IRS forms, or such other certifications as
the Certificate Registrar may reasonably request, on or before the date that
any such IRS form or certification expires or becomes obsolete, or promptly
after the occurrence of any event requiring a change in the most recent IRS
form of certification furnished by it to the Certificate Registrar.
For this purpose, "U.S. Person" means a citizen or resident of the United
States for U.S. federal income tax purposes, a corporation, partnership or
other entity treated as a corporation or partnership for federal income tax
purposes created or organized in or under the laws of the United States, any
state thereof or the District of Columbia, an estate the income of which is
subject to U.S. federal income taxation regardless of its source or a trust if
(A) for taxable years beginning after December 31, 1996 (or for taxable years
ending after August 20, 1996, if the trustee has made an applicable election),
a court within the United States is able to exercise primary supervision over
the administration of such trust, and one or more United States persons have
the authority to control all substantial decisions of such trust, or (B) for
all other taxable years, such trust is subject to United States federal income
tax regardless of the source of its income.
- ---------------------
1 Each Purchaser must include one of the two alternative certificates.
8. The Purchaser is not (a) 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 (the "Code"), or a governmental plan (as defined in
Section 3(32) of ERISA) subject to any federal, state or local law ("Similar
Law") which is, to a material extent, similar to the foregoing provisions of
ERISA or the Code (each, a "Plan"), or (b) a person acting on behalf of or
using the assets of any such Plan (including an entity whose underlying assets
include Plan assets by reason of investment in the entity by such Plan and the
application of Department of Labor Regulation Section 2510.3-101), other than
an insurance company using the assets of its general account under
circumstances whereby the purchase and holding of the Certificates by such
insurance company would be eligible for the exemptive relief from the
prohibited transaction provisions of ERISA and Section 4975 of the Code that
is available under Sections I and III of Prohibited Transaction Class
Exemption 95-60.
9. The Purchaser understands that if it is a Person referred to in 8(a)
or (b) above, such Purchaser is required to provide to the Certificate
Registrar an opinion of counsel in form and substance satisfactory to the
Certificate Registrar and the Depositor to the effect that the acquisition and
holding of such Certificate by such purchaser or transferee will not
constitute or result in a non-exempt prohibited transaction under ERISA,
Section 4975 of the Code or any Similar Law and will not subject the Trustee,
the Certificate Registrar, the Servicer, the Special Servicer, the Initial
Purchaser or the Depositor to any obligation or liability (including
obligations or liabilities under ERISA, Section 4975 of the Code or any
Similar Law) in addition to those set forth in the Pooling and Servicing
Agreement, which opinion of counsel shall not be at the expense of the
Depositor, the Servicer, the Special Servicer, the Trustee or the Trust Fund.
IN WITNESS WHEREOF, the Purchaser hereby executes this Qualified
Institutional Buyer Representation Letter on the ____ day of __________, ____.
Very truly yours,
[THE PURCHASER]
By:________________________________
Name:
Title:
<PAGE>
EXHIBIT C-2
FORM OF REGULATION S INVESTMENT REPRESENTATION LETTER -
NON-U.S. PERSON
The Chase Manhattan Bank
450 West 33rd Street, 14th Floor
New York, New York 10001
Attention: Structured Finance Services Group
Credit Suisse First Boston Mortgage Securities Corp.
Eleven Madison Avenue
New York, New York 10010
Attention: Principal Transactions Group
Re: Transfer of Credit Suisse First Boston Mortgage Securities Corp.
Commercial Mortgage Pass-Through Certificates, Series 1998-C2
Ladies and Gentlemen:
This letter is delivered pursuant to the Confidential Offering Circular
(the "Offering Circular") dated as of November 20, 1998 and to Section 5.02 of
the Pooling and Servicing Agreement dated as of November 11, 1998 (the
"Pooling and Servicing Agreement"), by and among Credit Suisse First Boston
Mortgage Securities Corp., as Depositor, First Union National Bank, as
Servicer, Lennar Partners, Inc., as Special Servicer, and The Chase Manhattan
Bank, as Trustee, on behalf of the holders of Credit Suisse First Boston
Mortgage Securities Corp. Commercial Mortgage Pass-Through Certificates,
Series 1998-C2 (the "Certificates") in connection with the transfer by Credit
Suisse First Boston Corporation (the "Seller") to the undersigned (the
"Purchaser") of $____________ aggregate Certificate Balance of Class ____
Certificates (the "Certificate"). Capitalized terms used and not otherwise
defined herein shall have the respective meanings assigned to such terms in
the Pooling and Servicing Agreement.
In connection with such transfer, unless otherwise directed by the
Depositor, the Purchaser hereby represents and warrants to you and the
addressees hereof as follows:
1. The Purchaser is not a "U.S. person" within the meaning of Regulation
S (a "Non-U.S. Person") under the Securities Act of 1933, as amended (the
"Securities Act").
2. The Purchaser's intention is to acquire the Certificate (a) for
investment for the Purchaser's own account, (b) for resale to Non-U.S. Persons
in transactions under Regulation S, or (c) for resale to "qualified
institutional buyers" in transactions under Rule 144A under the Securities
Act, and not in any event with a view to, or for resale in connection with,
any distribution thereof. The Purchaser understands that the Certificate (and
any subsequent Certificate) has not been registered under the Securities Act,
by reason of a specified exemption from the registration provisions of the
Securities Act which depends upon, among other things, the bona fide nature of
the Purchaser's investment intent (or intent to resell to only certain
investors in certain exempted transactions) as expressed herein.
3. The Purchaser has reviewed the Offering Circular and the agreements
and other materials referred to therein and has had the opportunity to ask
questions and receive answers concerning the terms and conditions of the
transactions contemplated by the Offering Circular.
4. The Purchaser acknowledges that the Certificate (and any Certificate
issued on transfer or exchange thereof) has not been registered or qualified
under the Securities Act or the securities laws of any State or any other
jurisdiction, and that the Certificate cannot be resold unless it is
registered or qualified thereunder, or unless an exemption from such
registration or qualification is available.
5. The Purchaser hereby undertakes to be bound by the terms and
conditions of the Pooling and Servicing Agreement in its capacity as an owner
of a Certificate or Certificates, as the case may be (each, a
"Certificateholder"), in all respects as if it were a signatory thereto. This
undertaking is made for the benefit of the Trust, the Certificate Registrar
and all Certificateholders present and future.
6. The Purchaser will not sell or otherwise transfer any portion of the
Certificate or Certificates, except in compliance with Section 5.02 of the
Pooling and Servicing Agreement.
7. The Purchaser is not a U.S. Person and under applicable law in effect
on the date hereof, no taxes will be required to be withheld by the Trustee
(or its agent) with respect to distributions to be made on the Certificate.
The Purchaser has attached hereto either (i) a duly executed IRS Form W-8 (or
successor form), which identifies such Purchaser as the beneficial owner of
the Certificate and states that such Purchaser is not a U.S. Person or (ii)
two duly executed copies of IRS Form 4224 (or successor form), which identify
such Purchaser as the beneficial owner of the Certificate and state that
interest and original issue discount on the Certificate and Permitted
Investments is, or is expected to be, effectively connected with a U.S. trade
or business. The Purchaser agrees to provide to the Certificate Registrar
updated IRS Forms W-8 or IRS Forms 4224, as the case may be, any applicable
successor IRS forms, or such other certifications as the Certificate Registrar
may reasonably request, on or before the date that any such IRS form or
certification expires or becomes obsolete, or promptly after the occurrence of
any event requiring a change in the most recent IRS form of certification
furnished by it to the Certificate Registrar.
For this purpose, "U.S. Person" means a citizen or resident of the United
States for U.S. federal income tax purposes, a corporation, partnership or
other entity treated as a corporation or partnership for federal income tax
purposes created or organized in or under the laws of the United States, any
state thereof or the District of Columbia, an estate the income of which is
subject to U.S. federal income taxation regardless of its source or a trust if
(A) for taxable years beginning after December 31, 1996 (or for taxable years
ending after August 20, 1996, if the trustee has made an applicable election),
a court within the United States is able to exercise primary supervision over
the administration of such trust, and one or more United States persons have
the authority to control all substantial decisions of such trust, or (B) for
all other taxable years, such trust is subject to United States federal income
tax regardless of the source of its income.
8. The Purchaser is not (a) 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 (the "Code"), or a governmental plan (as defined in
Section 3(32) of ERISA) subject to any federal, state or local law ("Similar
Law") which is, to a material extent, similar to the foregoing provisions of
ERISA or the Code (each, a "Plan") or (b) a person acting on behalf of or
using the assets of any such Plan (including an entity whose underlying assets
include Plan assets by reason of investment in the entity by such Plan and the
application of Department of Labor Regulation Section 2510.3-101), other than
an insurance company using the assets of its general account under
circumstances whereby the purchase and holding of the Certificates by such
insurance company would be eligible for the exemptive relief from the
prohibited transaction provisions of ERISA and Section 4975 of the Code that
is available under Sections I and III of Prohibited Transaction Class
Exemption 95-60.
9. The Purchaser understands that if it is a Person referred to in 8(a)
or (b) above, such Purchaser is required to provide to the Certificate
Registrar an opinion of counsel in form and substance satisfactory to the
Certificate Registrar and the Depositor to the effect that the acquisition and
holding of such Certificate by such purchaser or transferee will not
constitute or result in a non-exempt prohibited transaction under ERISA,
Section 4975 of the Code or any Similar Law and will not subject the Trustee,
the Certificate Registrar, the Servicer, the Special Servicer, the Initial
Purchaser or the Depositor to any obligation or liability (including
obligations or liabilities under ERISA, Section 4975 of the Code or any
Similar Law) in addition to those set forth in the Pooling and Servicing
Agreement, which opinion of counsel shall not be at the expense of the
Depositor, the Servicer, the Special Servicer, the Trustee or the Trust Fund.
<PAGE>
IN WITNESS WHEREOF, the Purchaser hereby executes this Regulation S
Investment Representation Letter on the ____ day of __________, ____.
Very truly yours,
[THE PURCHASER]
By:__________________________
Name:
Title:
<PAGE>
EXHIBIT C-3
FORM OF INVESTMENT REPRESENTATION LETTER -
INSTITUTIONAL ACCREDITED INVESTOR
The Chase Manhattan Bank
450 West 33rd Street, 15th Floor
New York, New York 10001
Attention: Structured Finance Services Group
Credit Suisse First Boston Mortgage Securities Corp.
Eleven Madison Avenue
New York, New York 10010
Attention: Principal Transactions Group
Re: Transfer of Credit Suisse First Boston Mortgage Securities Corp.
Commercial Mortgage Pass-Through Certificates, Series 1998-C2
Ladies and Gentlemen:
This letter is delivered pursuant to Section 5.02 of the Pooling and
Servicing Agreement dated as of November 11, 1998 (the "Pooling and Servicing
Agreement"), by and among Credit Suisse First Boston Mortgage Securities
Corp., as Depositor, First Union National Bank, as Servicer, Lennar Partners,
Inc., as Special Servicer, and The Chase Manhattan Bank, as Trustee, on behalf
of the holders of Credit Suisse First Boston Mortgage Securities Corp.
Commercial Mortgage Pass-Through Certificates, Series 1998-C2 (the
"Certificates") in connection with the transfer by Credit Suisse First Boston
Corporation (the "Seller") to the undersigned (the "Purchaser") of
$____________ aggregate Certificate Balance of Class __ Certificates (the
"Certificate"). Capitalized terms used and not otherwise defined herein shall
have the respective meanings assigned to such terms in the Pooling and
Servicing Agreement.
In connection with such transfer, unless otherwise directed by the
Depositor, the Purchaser hereby represents and warrants to you and the
addressees hereof as follows:
1. The Purchaser is an institutional "accredited investor" (an
"Accredited Investor"), as defined in Rule 501(a)(1), (2), (3), or (7) under
the Securities Act of 1933, as amended (the "Securities Act") and is acquiring
the Certificates for investment purposes and not with a view to, or for offer
or sale in connection with, any distribution in violation of the Securities
Act, and has such knowledge and experience in financial and business matters
as to be capable of evaluating the merits and risks of the investment in the
Certificates, and the Purchaser and any accounts for which the Purchaser is
acting are each able to bear the economic risk of the Purchasers or their
investment.
2. The Purchaser's intention is to acquire the Certificate for the
Purchaser's own account or for a single account (each of which is an
Accredited Investor and from which no resale, pledge or other transfer may be
made except to another Accredited Investor) as to which the Purchaser
exercises sole investment discretion.
3. The Purchaser has reviewed the Confidential Offering Circular relating
to the Certificate (the "Offering Circular") and the agreements and other
materials referred to therein and has had the opportunity to ask questions and
receive answers concerning the terms and conditions of the transactions
contemplated by the Offering Circular.
4. The Purchaser acknowledges that the Certificate (and any Certificate
issued on transfer or exchange thereof) has not been registered or qualified
under the Securities Act or the securities laws of any State or any other
jurisdiction, and that the Certificate cannot be resold unless it is
registered or qualified thereunder or unless an exemption from such
registration or qualification is available.
5. The Purchaser hereby undertakes to be bound by the terms and
conditions of the Pooling and Servicing Agreement in its capacity as an owner
of a Certificate or Certificates, as the case may be (each a
"Certificateholder"), in all respects as if it were a signatory thereto. This
undertaking is made for the benefit of the Trust, the Certificate Registrar
and all Certificateholders present and future.
6. The Purchaser will not sell or otherwise transfer any portion of the
Certificate or Certificates, except in compliance with Section 5.02 of the
Pooling and Servicing Agreement.
7. Check one of the following:1
[ ] The Purchaser is a U.S. Person (as defined below) and it has
attached hereto an Internal Revenue Service ("IRS") Form W-9 (or successor
form).
[ ] The Purchaser is not a U.S. Person and under applicable law in
effect on the date hereof, no taxes will be required to be withheld by the
Trustee (or its agent) with respect to distributions to be made on the
Certificate. The Purchaser has attached hereto either (i) a duly executed IRS
Form W-8 (or successor form), which identifies such Purchaser as the
beneficial owner of the Certificate and states that such Purchaser is not a
U.S. Person, or (ii) two duly executed copies of IRS Form 4224 (or successor
form), which identify such Purchaser as the beneficial owner of the
Certificate and state that interest and original issue discount on the
Certificate and Permitted Investments is, or is expected to be, effectively
connected with a U.S. trade or business. The Purchaser agrees to provide to
the Certificate Registrar updated IRS Forms W-8 or IRS Forms 4224, as the case
may be, any applicable successor IRS forms, or such other certifications as
the Certificate Registrar may reasonably request, on or before the date that
any such IRS form or certification expires or becomes obsolete, or promptly
after the occurrence of any event requiring a change in the most recent IRS
form of certification furnished by it to the Certificate Registrar.
- ---------------------
1 Each Purchaser must include one of the two alternative certifications.
For this purpose, "U.S. Person" means a citizen or resident of the United
States for U.S. federal income tax purposes, a corporation, partnership or
other entity treated as a corporation or partnership for federal income tax
purposes created or organized in or under the laws of the United States, any
state thereof or the District of Columbia, an estate the income of which is
subject to U.S. federal income taxation regardless of its source or a trust if
(A) for taxable years beginning after December 31, 1996 (or for taxable years
ending after August 20, 1996, if the trustee has made an applicable election),
a court within the United States is able to exercise primary supervision over
the administration of such trust, and one or more United States persons have
the authority to control all substantial decisions of such trust, or (B) for
all other taxable years, such trust is subject to United States federal income
tax regardless of the source of its income.
8. The Purchaser is not (a) 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 (the "Code"), or a governmental plan (as defined in
Section 3(32) of ERISA) subject to any federal, state or local law ("Similar
Law") which is, to a material extent, similar to the foregoing provisions of
ERISA or the Code (each, a "Plan"), or (b) a person acting on behalf of or
using the assets of any such Plan (including an entity whose underlying assets
include Plan assets by reason of investment in the entity by such Plan and the
application of Department of Labor Regulation Section 2510.3-101), other than
an insurance company using the assets of its general account under
circumstances whereby the purchase and holding of the Certificates by such
insurance company would be eligible for the exemptive relief from the
prohibited transaction provisions of ERISA and Section 4975 of the Code that
is available under Sections I and III of Prohibited Transaction Class
Exemption 95-60.
9. The Purchaser understands that if it is a Person referred to in 8(a)
or (b) above, such Purchaser is required to provide to the Certificate Registrar
an opinion of counsel in form and substance satisfactory to the Certificate
Registrar and the Depositor to the effect that the acquisition and holding of
such Certificate by such purchaser or transferee will not constitute or result
in a non-exempt prohibited transaction under ERISA, Section 4975 of the Code or
any Similar Law, and will not subject the Trustee, the Certificate Registrar,
the Servicer, the Special Servicer, the Initial Purchaser or the Depositor to
any obligation or liability (including obligations or liabilities under ERISA,
Section 4975 of the Code or any Similar Law) in addition to those set forth in
the Pooling and Servicing Agreement, which opinion of counsel shall not be at
the expense of the Depositor, the Servicer, the Special Servicer, the Trustee or
the Trust Fund.
<PAGE>
IN WITNESS WHEREOF, the Purchaser hereby executes this Accredited
Investor Investment Representation Letter on the ____ day of __________, ____.
Very truly yours,
[THE PURCHASER]
By:_________________________________
Name:
Title:
<PAGE>
EXHIBIT D-1
FORM OF TRANSFER AFFIDAVIT
AFFIDAVIT PURSUANT TO SECTION 860E(e)(4) OF THE INTERNAL REVENUE
CODE OF 1986, AS AMENDED
STATE OF )
) ss:
COUNTY OF )
[Name of Officer], being first duly sworn, deposes and says:
1. That [he] [she] is a [Title of Officer] of [Name of Transferee] (the
"Transferee"), a [description of type of entity] duly organized and existing
under the laws of the State of [_______], on behalf of which he makes this
affidavit.
2. That the Transferee's Taxpayer Identification Number is [_______].
3. That the Transferee of the Credit Suisse First Boston Mortgage
Securities Corp., Commercial Mortgage Pass-Through Certificates, Series
1998-C2, Class [R] [LR] Certificates (the "Class [R] [LR] Certificate") (i) is
not a Disqualified Organization, an ERISA Prohibited Holder, or a Non-U.S.
Person (as defined in Article I of the Pooling and Servicing Agreement, dated
as of November 11, 1998, by and among Credit Suisse First Boston Mortgage
Securities Corp., as Depositor, First Union National Bank, as Servicer, Lennar
Partners, Inc., as Special Servicer, and The Chase Manhattan Bank, as Trustee
(the "Pooling and Servicing Agreement") and will endeavor to remain other that
a Disqualified Organization and other than a Non-U.S. Person for so long as it
retains its ownership interest in the Class [R] [LR] Certificate, or (ii) is
acquiring the Class [R] [LR] Certificate for the account of, or as agent
(including as a broker, nominee, or other middleman) for, a Person other than
a Disqualified Organization or a Non-U.S. Person.
4. That the Transferee historically has paid its debts as they have come
due and intends to pay its debts as they come due in the future and the
Transferee intends to pay taxes associated with holding the Class [R] [LR]
Certificate as they become due.
5. That the Transferee understands that it may incur tax liabilities with
respect to the Class [R] [LR] Certificate in excess of any cash flow generated
by the Class [R] [LR] Certificate.
6. That the Transferee agrees not to transfer the Class [R] [LR]
Certificate to any Person or entity unless (a) the Transferee has received
from such Person or entity an affidavit substantially in the form of this
Transfer Affidavit, and (b) the Transferee provides to the Certificate
Registrar a letter substantially in the form of Exhibit D2 to the Pooling and
Servicing Agreement certifying that it has no actual knowledge that such
Person or entity is a Disqualified Organization or an Agent thereof, an ERISA
Prohibited Holder or a NonU.S. Person and that it has no reason to know that
such Person or entity does not satisfy the requirements set forth in paragraph
4 hereof.
7. That the Transferee agrees to such amendments of the Pooling and
Servicing Agreement as may be required to further effectuate the restrictions
on transfer of the Class [R] [LR] Certificate to a Disqualified Organization
or an Agent thereof, an ERISA Prohibited Holder or a NonU.S. Person. To the
extent not defined herein, the capitalized terms used herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
8. That, if a "tax matters person" is required to be designated with
respect to the [UpperTier REMIC] [LowerTier REMIC], the Transferee agrees to
act as "tax matters person" and to perform the functions of "tax matters
person" of the [UpperTier REMIC] [LowerTier REMIC] pursuant to Section
10.01(c) of the Pooling and Servicing Agreement, and agrees to the irrevocable
designation of the Servicer as the Transferee's agent in performing the
function of "tax matters person."
9. The Transferee has reviewed, and agrees to be bound by and to abide
by, the provisions of Section 5.02(d) of the Pooling and Servicing Agreement
concerning registration of the transfer and exchange of Class [R] [LR]
Certificates.
<PAGE>
IN WITNESS WHEREOF, the Transferee has caused this instrument to be
executed on its behalf, by its [Title of Officer] this _____ day of
__________, 19__.
[NAME OF TRANSFEREE]
By:________________________________________
[Name of Officer]
[Title of Officer]
Personally appeared before me the abovenamed [Name of Officer], known or
proved to me to be the same person who executed the foregoing instrument and
to be the [Title of Officer] 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 __________, 19__.
-------------------------------
NOTARY PUBLIC
COUNTY OF ________________________
STATE OF ____________________________
My commission expires the ___ day of __________, 19__.
<PAGE>
EXHIBIT D-2
FORM OF TRANSFEROR LETTER
[Date]
The Chase Manhattan Bank
as Trustee
450 West 33rd Street, 14h Floor
New York, New York 10001
Attention: Structured Finance Services - CMBS
Re: Credit Suisse First Boston Mortgage Securities Corp. Commercial
Mortgage PassThrough Certificates, Series 1997-C2
Ladies and Gentlemen:
[Transferor] has reviewed the attached affidavit of [Transferee], and has
no actual knowledge that such affidavit is not true and has no reason to know
that the requirements set forth in paragraphs 3 and 4 thereof are not
satisfied or that the information contained in paragraphs 3 and 4 thereof is
not true.
Very truly yours,
[Transferor]
_________________________________
Name:
<PAGE>
EXHIBIT E
LIST OF MEZZANINE LOANS
Loan No. loan Name
1 Intell-Reichmann Portfolio Summary
3 Butera Portfolio Summary
5 L'Enfant Plaza
6 260-261 Madison Avenue
8 Thurman Multifamily Portfolio Summary
10 Pinstripe Multifamily Portfolio Summary
13 Garden Variety Apartments Portfolio Summary
14 Donatelli Portfolio Summary
15 Camco Summary
89 Bayscene Mobilehome Park
<PAGE>
EXHIBIT F
FORM OF REQUEST FOR RELEASE
[Date]
The Chase Manhattan Bank
as Trustee
450 West 33rd Street, 14th Floor
New York, New York 10001
Attention: Structured Finance Services - CMBS
Credit Suisse First Boston Mortgage Securities Corp.
Eleven Madison Avenue
New York, New York 10010
Attention: Principal Transactions Group
Re: Credit Suisse First Boston Mortgage Securities Corp.
Commercial Mortgage PassThrough Certificates, Series 1997-C2,
REQUEST FOR RELEASE
Dear _______________________,
In connection with the administration of the Mortgage Files held by
or on behalf of you as Trustee under a certain Pooling and Servicing Agreement
dated as of November 11, 1998 (the "Pooling and Servicing Agreement"), by and
among Credit Suisse First Boston Mortgage Securities Corp., as depositor,
Lennar Partners, Inc. (the undersigned), as special servicer (the "Special
Servicer"), First Union National Bank (the undersigned), as servicer (the
"Servicer"), and you, as Trustee, the undersigned hereby requests a release of
the Mortgage File (or the portion thereof specified below) held by or on
behalf of you as Trustee with respect to the following described Loan for the
reason indicated below.
Mortgagor's Name:
Address:
Loan No.:
If only particular documents in the Mortgage File are requested, please specify
which:
Reason for requesting file (or portion thereof):
______1. Loan paid in full. The [Servicer] [Special Servicer] hereby
certifies that all amounts received in connection with the Loan have
been or will be credited to the Certificate Account pursuant to the
Pooling and Servicing Agreement.
______2. The Loan is being foreclosed.
______3. Other. (Describe)
The undersigned acknowledges that the above Mortgage File (or
requested portion thereof) will be held by the undersigned in accordance with
the provisions of the Pooling and Servicing Agreement and will be returned to
you or your designee within ten days of our receipt thereof, unless the Loan
has been paid in full, in which case the Mortgage File (or such portion
thereof) will be retained by us permanently, unless the Loan is being
foreclosed, in which case the Mortgage File (or such portion thereof) will be
returned when no longer required by us for such purpose.
Capitalized terms used but not defined herein shall have the
meanings ascribed to them in the Pooling and Servicing Agreement.
[SERVICER] [SPECIAL SERVICER]
By:__________________________________
Name:______________________
Title:_____________________
<PAGE>
EXHIBIT G
FORM OF TRUSTEE CERTIFICATE PURSUANT TO SECTION 2.05(A)
Credit Suisse First Boston Mortgage I Corporation, as trustee (the
"Trustee"), under a Trust Agreement (the "Agreement") dated as of June 29, 1998,
among Credit Suisse First Boston Mortgage Depositor I Corporation ("Depositor
I"), the Trustee and Commonwealth Trust Company, a Delaware trust company, as
resident trustee, hereby certifies as follows:
1. Pursuant to Section 9.2 of the Agreement, the Trustee has (i)
received written notice from the Owners (as defined in the
Agreement) of the Trust electing to terminate and dissolve the
Trust, and (ii) entered into a written agreement with Depositor I
pursuant to which Depositor I shall assume all obligations of the
Trustee, the Resident Trustee (as defined in the Agreement) and the
Trust and release the Trustee and the Resident Trustee therefrom.
2. The termination of the Trust is permitted pursuant to Section 9.2 of
the Agreement and Section 3808 of Chapter 38 of Title 12 of the
Delaware Code. The Trust shall be terminated upon filing of a
certificate of cancellation.
3. Reasonable provisions have been made to pay all claims and
obligations, including all contingent, conditional or unmatured
claims and obligations known to the Trust and all claims and
obligations which are known to the Trust but for which the identity
of the claimant is unknown.
4. The Trustee shall file a certificate of cancellation as provided in
Section 3810 of Chapter 38 of Title 12 of the Delaware Code upon
completion of winding-up of the Trust.
IN WITNESS WHEREOF, the Trustee has caused this certificate to be
executed on its behalf this ____ day of __________, 19___.
CREDIT SUISSE
FIRST BOSTON MORTGAGE I CORPORATION
By:__________________________
Name:
Title:
<PAGE>
EXHIBIT H
FORM OF ORDER OF DISSOLUTION AND LIQUIDATION
[DATE]
Credit Suisse First Boston Mortgage I Corporation
Eleven Madison Avenue
New York, New York 10010
Re: Credit Suisse First Boston
Mortgage Finance Trust I
(the "Trust")
You are hereby directed to terminate the Trust pursuant to Section
9.2 of the Trust Agreement, dated June 29, 1998, by and among Credit Suisse
First Boston Depositor I Corporation, Credit Suisse First Boston Mortgage I
Corporation and Commonwealth Trust Company.
CREDIT SUISSE FIRST BOSTON
MORTGAGE SECURITIES CORP.
By:____________________________
Name:
Title:
CREDIT SUISSE FIRST BOSTON
MORTGAGE CAPITAL LLC
By:____________________________
Name:
Title:
CREDIT SUISSE FIRST BOSTON
DEPOSITOR I CORPORATION
By:____________________________
Name:
Title:
THE CHASE MANHATTAN BANK,
as trustee under a pooling and servicing
agreement, dated as of November 11, 1998
By:____________________________
Name:
Title:
<PAGE>
EXHIBIT I-1
FORM OF COMPARATIVE FINANCIAL STATUS REPORT
<TABLE>
<CAPTION>
Credit Suisse First Boston
Commercial Mortgage Pass-Through Certificates, Series 1998-C2
COMPARATIVE FINANCIAL STATUS REPORT
as of
---------------
Original Underwriting
Information
Basic Year
Last
Property Paid Annual Financial
Prospectus Inspect Scheduled Thru Debt Info as of % Total $ (1)
ID City State Date Loan Balance Date Service Date Occ Revenue NOI DSCR
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
yy/mm yy/mm
List all properties
currently in deal with or
without information
largest to smallest loan
Total: $ $ WA $ $ WA
2nd Preceding Annual Operating Preceding Annual Operating
Information Information
as of Normalized as of
Financial Financial
Prospectus Info as of % Total $ (1) Info as of % Total $ (1)
ID Date Occ Revenue NOI DSCR Date Occ Revenue NOI DSCR
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
yy/mm yy/mm
List all properties
currently in deal with or
without information
largest to smallest loan
Total: WA $ $ WA WA $ $ WA
Trailng Financial or YTD Net Change
Information
Month Reported Actual Preceding & Basis
Prospectus FS Start FS End Total $ % % Total (1)
ID Date Date Revenue NOI DSC Occ Revenue DSCR
<S> <C> <C> <C> <C> <C> <C> <C> <C>
yy/mm yy/mm
List all properties
currently in deal with or
without information
largest to smallest loan
Total: WA $ $ WA WA $ WA
Received Required
Financial Information: Loans Balance Loans Balance
# % $ % # % $ %
Current Full Year:
Current Full Yr. received
with DSC <1:
Prior Full Year:
Prior Full Yr. received
with DSC <1:
(1) DSCR should match to Operating Statement and is normally calculated using NOI/Debt Service.
(2) Net change should compare the latest year to the underwriting year.
</TABLE>
<PAGE>
EXHIBIT I-2
FORM OF DELINQUENT LOAN STATUS REPORT
<TABLE>
<CAPTION>
Credit Suisse First Boston Mortgage Securities Corp.
Commercial Mortgage Pass-Through Certificates, Series 1998-C2
DELINQUENT LOAN STATUS REPORT
as of _______________
S4 S55 S61 S57 S58 P74 P75
(f)-P38/P81 (g)-(92+f)e
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Appraisal
Short Name Value using BPO or Loss using
Prospectus (When Property City State NOI & Cap Valuation Internal 90% Appr. or
ID Appropriate) Type Rate Date Value** BPO(1)
90 + DAYS DELINQUENT
60 DAYS DELINQUENT
30 DAYS DELINQUENT
Current & at Special Servicer
PCL - Foreclosure
LTM - Latest 12 Months either Last Annual or Trailing 12 months
*Workout Strategy should match the CSSA Loan file using abreviated words in place of a code number such as (PCL - in Foreclosure,
MOD - Modification, DPO - Discount Payoff, NS - Note Sale, BK - Bankruptcy, PP - Payment Plan, TBD - To be Determined etc...)
It is possible to combine the status codes if the loan is going in more than one direction (i.e. PCL/Mod. BK/Mod. BK/PCL/DPO)
**App. Appraisal, BPO - Broker opinion, Intl. - Internal Value
***How to determine the cap note is agreed upon by Underwriter and servicers - to be provided by a third party.
S4 h-(g/e) P35 P77 P79 P42 P82 P76
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Total
Appraisal Expected
Estimated Reduction Transfer Resolution FCL Start FCI Sale Workout
Recovery % Realized Date Date Date Date Strategy Comments
90 + DAYS DELINQUENT
60 DAYS DELINQUENT
30 DAYS DELINQUENT
Current & at Special Servicer
PCL - Foreclosure
LTM - Latest 12 Months either Last Annual or Trailing 12 months
*Workout Strategy should match the CSSA Loan file using abbreviated words in place of a code number such as (PCL - In Foreclosure,
MOD - Modification, DPO - Discount Payoff, NS - Note Sale, BK - Bankruptcy, PP - Payment Plan, TBD - To be Determined etc...)
It is possible to combine the status codes if the loan is going in more than one direction (i.e. PCL/Mod., BK/Mod., BK/PCL/DPO)
**App. Appraisal, BPO - Broker opinion, Int. - Internal Value
***How to determine the cap note is agreed upon by Underwriter and servicers - to be provided by a third party.
</TABLE>
<TABLE>
<CAPTION>
Credit Suisse First Boston Mortgage Securities Corp.
Commercial Mortgage Pass-Through Certificates, Series 1998-C2
DELINQUENT LOAN STATUS REPORT
as of ____________
S4 S55 S61 S57 S58 S62 or S63 P6 P7 P37 P39 P38
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
(a) (b) (c) (d)
Other
Short Name Scheduled Total P&I Total Advances
Prospectus (When Property Sq Ft or Paid Thru Loan Advances To Expenses to (Taxes &
ID Appropriate) Type City State Units Date Balance Date Date Escrow)
90+ DAYS DELINQUENT
60 DAYS DELINQUENT
30 DAYS DELINQUENT
Current & at Special Servicer
PCL - Foreclosure
LTM - Latest 12 Months either Last Annual or Trailing 12 months
*Workout Strategy should match the CSSA Loan file using abbreviated words in place of a code number such as (PCL - In Foreclosure,
MOD - Modification, DPO - Document Payoff, NS - Note Sale, BK - Bankruptcy, PP - Payment Plan, TBD - To Be Determined, etc...)
It is possible to combine the status codes if the loan is going in more than one direction (i.e. PCL/Mod., BK/Mod., BK/PCL/DPO)
**App. Appraisal, BPO - Broker opinion, Intl. - Internal Value
***How to determine the cap note is agreed upon by Underwriter and servicers - to be provided by a third party.
P25 P10 P11 P58 P54 P55 P61
<S> <C> <C> <C> <C> <C> <C> <C> <C>
e-a+b+c+d
Total Current Current Maturity LTM NOI ***Cap Rate
Expenses Monthly P&I Interest Rate Date Date LTM NOI LTM DSCR Assigned
90+ DAYS DELINQUENT
60 DAYS DELINQUENT
30 DAYS DELINQUENT
Current & at Special Servicer
PCL - Foreclosure
LTM - Latest 12 Months either Last Annual or Trailing 12 months
*Workout Strategy should match the CSSA Loan file using abbreviated words in place of a code number such as (PCL - In Foreclosure,
MOD - Modification, DPO - Document Payoff, NS - Note Sale, BK - Bankruptcy, PP - Payment Plan, TBD - To Be Determined, etc...)
It is possible to combine the status codes if the loan is going in more than one direction (i.e. PCL/Mod., BK/Mod., BK/PCL/DPO)
**App. Appraisal, BPO - Broker opinion, Int. - Internal Value
***How to determine the cap note is agreed upon by Underwriter and servicers - to be provided by a third party.
</TABLE>
<PAGE>
EXHIBIT I-3
FORM OF HISTORICAL LOAN MODIFICATION REPORT
<TABLE>
<CAPTION>
Credit Suisse First Boston
Commercial Mortgage pass-Through Certificates, Series 1998-C2
HISTORICAL LOAN MODIFICATION REPORT
as of ____
Balance
Mod/ When Sent Balance at the # Months
Extension Effect in Special Effective Date of for Rate New
Prospectus ID City State Flag Date Servicer Rehabilitation Old Rate Change Rate
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
THIS REPORT IS HISTORICAL
Information is as of
modification. Each line
it should not change in
the future. Only new
modifications should be
added.
Total for All Loans:
Total for Loans in
Current Month:
# of Loans $ Balance
Modifications:
Maturity Date Extenstions:
Total:
* The information in these columns is from a particular point in time and should not change in this report once assigned.
(1) Actual principal loss taken by bonds.
(2) Expected future loss due to a rate reduction. This is just an estimate calculated at the time of the modification.
(2) Est.
Future
Total # Interest Loss
Mths for (1) Realized Trust $
Old New Change of Loan to (Rate
Old P&I New P&I Maturity Maturity Mod Trust $ Reduction) COMMENT
<S> <C> <C> <C> <C> <C> <C> <C> <C>
THIS REPORT IS HISTORICAL
Information is as of
modification. Each line
it should not change in
the future. Only new
modifications should be
added.
Total For All Loans:
Total For Loans in
Current Month:
Modifications:
Maturity Date Extentions:
Total:
* The information in these columns is from a particular point in time and should not change on this report once assigned.
(1) Actual principal loss taken by bonds.
(2) Expected future loss due to a rate reduction. This is just an estimate calculated at the time of the modification.
</TABLE>
<PAGE>
EXHIBIT I-4
FORM OF HISTORICAL LOSS ESTIMATION REPORT
<TABLE>
<CAPTION>
Credit Suisse First Boston
Commercial Mortgage Pass-Through Certificates
Series 1998-C2
HISTORICAL LOSS ESTIMATE REPORT (REO-SOLD or DISCOUNTED PAYOFF)
as of _____
S4 S55 S61 S57 S58 P45/P7 P75 P45
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
c-b/a (a) (b) (d)
Latest
Short Name % Appraisal or Effect Net Amt.
Prospectus (When Property Received Brokers Date of Received
ID Appropriate) Type City State From Sale Opinion Sale Sales Price from Sale
THIS REPORT IS HISTORICAL
All information is from
the liquidation date and
does not need to be
updated.
Total all Loans:
Current Month Only:
P7 P37 P39-P38
<S> <C> <C> <C> <C> <C> <C> <C> <C>
(e) (f) (g) (h) (i)-d(f+g+h) (k)-i-e (m)
Minor
Date Loss Adj
Scheduled Total P&I Total Servicing Fees Actual Losses Passed to
Balance Advanced Expenses Expense Net Proceeds Passed thru thru trust
THIS REPORT IS HISTORICAL
All information is from
the liquidation date and
does not need to be
updated.
Total all Loans:
Current Month Only:
(n)-k+m (o)-n/e
Loss % of
Minor Adj Total Loss with Scheduled
Passed thru Adjustment Balance
<S> <C> <C> <C>
THIS REPORT IS HISTORICAL
All information is from
the liquidation date and
does not need to be
updated.
Total all Loans:
Current Month Only:
</TABLE>
<PAGE>
EXHIBIT I-5
FORM OF REO STATUS REPORT
<TABLE>
<CAPTION>
Credit Suisse First Boston Mortgage Securities Corp.
Commercial Mortgage Pass-Through, Series 1998-C2
REO STATUS REPORT
as of ___________
S63 (a) (b) (c) (d)
Other
Short Name Paid Scheduled Total P&I Total Advances
Prospectus (When Property Sq Ft or Thru Loan Advances Expenses (Taxes &
ID Appropriate Type City State Units Date Balance To Date To Date Escrow)
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
(e)=a+b+c+7+d
Current LTM LTM Cap Rate
Total Monthly Maturity NOI NOI/ Assign Valuation
Exposure P&I Date Date DSC *** Date
<S> <C> <C> <C> <C> <C> <C> <C>
(1) Use the following codes: App.=Appraisal, BPO-Broker Opinion, Int.-Internal Value
*** How to determine the cap rate is agreed upon by Underwriter and servicers - to be provided by a third party.
</TABLE>
<TABLE>
<CAPTION>
Credit Suisse First Boston Mortgage Securities Corp.
Commercial Mortgage Pass-Through, Series 1998-C2
REO STATUS REPORT
as of ___________
(f)-(k/j) (g) (h)-92+g) (i) - (g/e)
Value Appraisal
Short Name using NOI BPO or Loss using
Prospectus (When Property & Cap Internal 92% Appr. Estimated
ID Appropriate Type City State Rate Value** or BPO(f) Recovery%
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Total
Appraisal REO Pending
Reduction Transfer Acquisition Resolution
Realized Date Date Date Comments
<S> <C> <C> <C> <C> <C>
(1) Use the following codes; App.-Appraisal, BPO-Broker Opinion, Int.=Internal Value
*** How to determine the cap rate is agreed upon by Underwriter and servicers - to be provided by a third party.
</TABLE>
<PAGE>
EXHIBIT I-6
FORM OF SERVICER WATCH LIST
<TABLE>
<CAPTION>
Credit Suisse First Boston Mortgage Securities Corp.
Commercial Mortgage Pass-Through Certificates, Series 1998-C2
SERVICER WATCH LIST
as of ________________
Short Name Scheduled Paid Matruity
Prospectus ID (When Property Type City State Loan Balance Thru Date LTM* DSCR Comment/Reason on Watch List
Appropriate Date
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
List all loans on watch list and reason sorted in descending balance order.
Total $
*LTM-Last 12 months either trailing or last annual
</TABLE>
<PAGE>
EXHIBIT I-7
FORM OF OPERATING STATEMENT ANALYSIS REPORT
<TABLE>
<CAPTION>
Credit Suisse First Boston
Commercial Mortgage Pass-Through Certificates, Series 1998-C2
Form of OPERATING STATEMENT ANALYSIS REPORT
as of __________________
PROPERTY OVERVIEW
<S> <C> <C> <C> <C> <C> <C> <C>
Prospectus Number
Scheduled Balance/Paid to Date
Property Name
Property Type
Property Address, City, State
Net Rentable Square Feet
Year Built/Year Renovated
Year of Operations Underwriting 1996 1997 1998 Trailing
Occupancy Rate*
Average Rental Rate
*Occupancy rates are year end or the ending date of the financial statement for the period.
INCOME:
Prior Year Current Yr. No. of Mos.
Number of Mos. Underwriting 1996 1997 1998 98 Trailing** 1998-Base 1998-1997
Period Ended Base Line Normalized Normalized Normalized as of / /98 Variance Variance
Statement Classification
Rental Income (Category 1)
Rental Income (Category 2)
Rental Income (Category 3)
Pass Through/Escalations
Other Income
Gross Income $0.00 $0.00 $0.00 $0.00 $0.00 % %
Normalized-Full year Financial statements that have been reviewed by the underwriter or Servicer.
**Servicer will not be expected to "Normalize" these YTD numbers.
OPERATING EXPENSES:
Real Estate Taxes
Property Insurance
Utilities
General & Administration
Repairs and Maintenance
Management Fees
Payroll & Benefits Expense
Advertising & Marketing
Professional Fees
Other Expenses
Ground Rent
Total Operating Expenses $0.00 $0.00 $0.00 $0.00 $0.00 % %
Operating Expense Ratio
Net Operating Income $0.00 $0.00 $0.00 $0.00 $0.00
Leasing Commissions
Tenant Improvements
Replacement Reserve
Total Capital Items $0.00 $0.00 $0.00 $0.00 $0.00 $0.00
N.O.I. After Capital Items $0.00 $0.00 $0.00 $0.00 $0.00
Debt Service (Per Servicer) $0.00 $0.00 $0.00 $0.00 $0.00
Cash Flow after debt service $0.00 $0.00 $0.00 $0.00 $0.00
(1) DSCR: (NOI/Debt Servicer)
DSCR: (after reserves\Cap exp.)
Source of Financial Data:
(i.e. oerating statements, financial statements, tax return, other)
Notes and Assumptions:
The years shown above will roll always showing a three year history. 1996 is the current year financials; 1995 is the prior year
financials.
This report may vary depending on the property type and because of the way information may vary in each borrowers statement.
Rental Income needs to be broken down, differently whenever possible for each property type as follows: retail: 1) Base Rent
2) Percentage rents on cashflow
Hotel: 1) Room Revenue 2)Food/Beverage Nursing Home: 1)Private 2) Medicaid 3) Medicare
Income: Comment
Expense: Comment
Capital Items: Comment
(1) Used in the Comparative Financial Status Report
</TABLE>
<PAGE>
EXHIBIT J
FORM OF TRUSTEE LETTER PURSUANT TO SECTION 2.05(C)
[DATE]
Credit Suisse First Boston Mortgage I Corporation
Eleven Madison Avenue
New York, New York 10010
Re: Credit Suisse First Boston Mortgage Securities Corp.
Commercial Mortgage Pass-Through Certificates
Series 1998-C2
This certificate is delivered to you pursuant to Section 2.05(c) of the
Pooling and Servicing Agreement, dated as of November 11, 1998 by and among
Credit Suisse First Boston Mortgage Securities Corp., as depositor (the
"Depositor"), First Union National Bank, as servicer, Lennar Partners, Inc.,
as special servicer, and The Chase Manhattan Bank, as trustee (the "Trustee").
The undersigned hereby directs you to transfer to the Depositor all
remaining assets of Credit Suisse First Boston Mortgage Finance Trust I (the
"Mortgage Trust"), after satisfaction of all debts and obligations of the
Mortgage Trust.
THE CHASE MANHATTAN BANK,
as Trustee
---------------------------------
Name:
Title:
<PAGE>
EXHIBIT K
FORM OF AFFIDAVIT OF LOST NOTE
STATE OF )
) ss.:
COUNTY OF )
__________________________________________________, being duly sworn,
deposes and says:
1. that he/she is an authorized signatory of _________________________
(the "Noteholder");
2. that the Noteholder is the owner and holder of a mortgage loan in the
original principal amount of $____________________ secured by a mortgage (the
"Mortgage") on the premises known as ____________________
____________________, located in ____________________;
3. that the Noteholder, after having conducted a diligent investigation
of its records and files, has been unable to locate the following original
note and believes that said original note has been lost, misfiled, misplaced
or destroyed due to a clerical error:
a note in the original sum of $___________________ made by
______________________________________, to __________________________,
under date of ____________________ (the "Note");
4. that the Note is now owned and held by the Noteholder;
5. that the Note has not been paid-off, satisfied, assigned, transferred,
encumbered, endorsed, pledged, hypothecated, or otherwise disposed of and that
the original Note has been either lost, misfiled, misplaced or destroyed;
6. that no other person, firm, corporation or other entity has any right,
title, interest or claim in the Note except the Noteholder; and
7. upon assignment of the Note by the Noteholder to Credit Suisse First
Boston Mortgage Securities Corp. (the "Depositor" or the "Purchaser") and
subsequent assignment by the Depositor to the Trustee for the benefit of the
holders of the Credit Suisse First Boston Mortgage Securities Corp. Commercial
Mortgage Pass-Through Certificates, Series 1998-C2 (the "Trustee") (which
assignment may, at the discretion of the Depositor, be made directly by the
Noteholder to the Trustee) the Noteholder covenants and agrees (a) to promptly
deliver to the Trustee the original Note if it is subsequently found, and (b)
to indemnify and hold harmless the Trustee and its successors and assigns from
and against any and all costs, expenses and monetary losses arising as a
result of the Noteholder's or the Depositor's failure to deliver said original
Note to the Trustee.
NAME OF NOTEHOLDER
By:___________________________________
Authorized Signatory
Sworn to before me this
__________ day of ____________, 199_
<PAGE>
EXHIBIT L
FORM OF DRAW REQUEST
DRAW: DATE REQUESTED:
<TABLE>
<CAPTION>
CVS DEVELOPER
<S> <C> <C> <C>
STORE NO.: CVS PROJECT NUMBER: NAME:
STREET: CVS CAP CODE: STREET:
CITY: STATE: CITY: STATE:
TYPE OF DEAL: TYPE OF LOCATION ZIP CODE: TELEPHONE NO.:
INSPECTED BY: CONTACT:
</TABLE>
<TABLE>
<CAPTION>
(A) (B) (C) (D) (D/B)
<S> <C> <C> <C> <C> <C>
DOLLAR DISBURSED
AMOUNT TO DATE
PERCENTAGE BUDGETED REQUESTED INCLUDING % BUDGET
CONSTRUCTION STAGE: COMPLETE AMOUNT THIS DRAW THIS DRAW PAID
EXCAVATION/SITE WORK
GENERAL CONDITIONS
CONCRETE
TEEL
MASONARY
ROOFING
DRYWALL/METAL STUDS
CEILING
CARPENTRY
EXT. DOORS & WINDOWS
INT. DOORS & HARDWARE
CARPENTRY MATERIALS
FINISHES
E.I.F.S.
ELECTRICAL
HVAC
PLUMBING & GAS PIPING
MISCELLANEOUS
G.C. FEE
NATIONAL ACCOUNT ITEMS:
LIGHT FIXTURES
RX GRILLE
CARPET
HVAC EQUIPMENT
AUTOMATIC DOORS
DRIVE THRU WINDOW
EMS
OPTIONAL ITEMS:
LANDSCAPING
SPRINKLER
FIRE ALARM
SECURITY GATES
TOTAL:
SOFT COSTS
LIEN WAIVERS RECEIVED AND REVIEWED YES: NO:
DEVELOPER APPROVAL CVS PROJECT MANAGER APPROVAL
WIRE INSTRUCTIONS:
</TABLE>
<PAGE>
BANK NAME: PAPER FLOW
ADDRESS: DEVELOPER E-MAIL/FAX TO PRODUCT MANAGER
ABA #: PRODUCT MANAGER E-MAIL/FAX TO GECAM
ACCOUNT #:
REFERENCE:
<PAGE>
EXHIBIT M
FORM OF CONSTRUCTION LOAN MONTHLY ACCOUNTING REPORT
DATE REQUESTED:
STORE NO.: CVS PROJECT NUMBER: NAME:
STREET: CVS CAP CODE: STREET:
CITY: STATE: CITY: STATE:
TYPE OF DEAL: TYPE OF LOCATION ZIP CODE: TELEPHONE NO.:
INSPECTED BY: CONTACT:
<TABLE>
<CAPTION>
A B C A-C C-A
<S> <C> <C> <C> <C> <C>
DISBURSED % OF
PERCENT TO AMOUNT BUDGET
CONSTRUCTION STAGE: BUDGETED COST COMPLETE DA4TE REMAINING USED
LAND
EXCAVATION/SITE WORK
GENERAL CONDITIONS
CONCRETE
STEEL
MASONARY
ROOFING
DRYWALL/METAL STUDS
CEILING
CARPENTRY
EXT. DOORS & WINDOWS
INT. DOORS & HARDWARE
CARPENTRY MATERIALS
FINISHES
E.I.F.S.
ELECTRICAL
HVAC
PLUMBING & GAS PIPING
MISCELLANEOUS
G.C. FEE
NATIONAL ACCOUNT ITEMS:
LIGHT FIXTURES
RX GRILLE
CARPET
HVAC EQUIPMENT
AUTOMATIC DOORS
DRIVE THRU WINDOW
EMS
OPTIONAL ITEMS:
LANDSCAPING
SPRINKLER
FIRE ALARM
SECURITY GATES
SOFT COSTS
RETAINAGE
TOTAL:
</TABLE>
<TABLE>
<CAPTION>
<PAGE>
CONSTRUCTION DRAWS INTEREST RESERVE SOFT COST DRAWS
DRAW # AMOUNT DISBURSED DATE DISTRIBUTED DRAW # AMOUNT DISBURSED DATE DISBURSED DRAW # AMOUNT DISBURSED DATE DISTRIBUTED
<S> <C> <C> <C> <C> <C> <C>
1 1 1
2 2 2
3 3 3
4 4 4
5 5 5
6 6 6
</TABLE>
