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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): June 25, 1998
Credit Suisse First Boston Mortgage Securities Corp.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 333-51771 13-3320910
(STATE OR OTHER JURISDICTION (COMMISSION) (I.R.S. EMPLOYER
OF INCORPORATION) FILE NUMBER) IDENTIFICATION NO.)
11 Madison Avenue, New York, New York 10010
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
Registrant's telephone number, including area code (212) 325-2000
Not Applicable
(FORMER NAME OR FORMER ADDRESS, IF CHANGED SINCE LAST REPORT)
Exhibit Index Located on Page 2
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ITEM 2. ACQUISITION OR DISPOSITION OF ASSETS.
On June 25, 1998, a single series of certificates, entitled
Credit Suisse First Boston Mortgage Securities Corp., Commercial Mortgage
Pass-Through Certificates, Series 1998-C1 (the "Certificates"), was issued
pursuant to a Pooling and Servicing Agreement (the "Pooling and Servicing
Agreement"), attached hereto as Exhibit 4.1, dated as of June 11, 1998, among
Credit Suisse First Boston Mortgage Securities Corp., as depositor (the
"Depositor"), Banc One Mortgage Capital, LLC, as servicer, Lennar Partners,
Inc., as special servicer, and State Street Bank and Trust Company, as trustee.
The Certificates consist of seventeen classes identified as the "Class A-1A
Certificates," the "Class A- 1B Certificates," the "Class A-2MF Certificates,"
the "Class A-X Certificates," the "Class B Certificates," the "Class C
Certificates," the "Class D Certificates," the "Class E Certificates," the
"Class F Certificates," the "Class G Certificates," the "Class H Certificates,"
the "Class I Certificates," the "Class J Certificates," the "Class R
Certificates," the "Class LR Certificates," the "Class V-1 Certificates" and
the "Class V-2 Certificates," respectively, and were issued in exchange for,
and evidence the entire beneficial ownership interest in, the assets of a trust
fund (the "Trust Fund") consisting primarily of a pool (the "Mortgage Pool") of
commercial and multifamily mortgage loans (the "Mortgage Loans"), having as of
the close of business on June 11, 1998 (the "Cut-off Date"), an aggregate
principal balance of $2,482,942,297 (the "Initial Pool Balance"), after taking
into account all payments of principal due on Mortgage Loans on or before such
date, whether or not received. The Depositor acquired certain of the Trust Fund
assets from Credit Suisse First Boston Mortgage Capital LLC ("CSFB Mortgage
Capital") pursuant to a mortgage loan purchase agreement dated as of June 11,
1998, attached hereto as Exhibit 99.1, between CSFB Mortgage Capital as seller
and the Depositor as purchaser. The Depositor acquired certain of the Trust
Fund assets from Paine Webber Real Estate Securities Inc. ("PWRES") pursuant to
a mortgage loan purchase agreement dated June 11, 1998, attached hereto as
Exhibit 99.2, between PWRES as seller and the Depositor as purchaser. The
Depositor sold the Class A-1A, Class A-1B, Class A- 2MF, Class B, Class C,
Class D and Class E Certificates to Credit Suisse First Boston Corporation
("CSFBC") and PaineWebber Incorporated ("PWI") as Underwriters pursuant to an
underwriting agreement dated June 18, 1998, attached hereto as Exhibit 1.1,
among CSFBC and PWI as underwriters, and the Depositor. The Depositor sold the
Class F, Class G, Class H, Class I, Class J, Class R, Class LR, Class V-1 and
Class V-2 Certificates to CSFBC and PWI pursuant to a purchase agreement dated
June 18, 1998 among CSFBC and PWI as initial purchasers, and the Depositor.
The Class A-1A Certificates will have an initial certificate balance of
$431,400,000 ("Certificate Balance"). The Class A-1B Certificates will have an
initial Certificate Balance of $1,055,100,000. The Class A-2MF Certificates
will have an initial Certificate Balance of $263,890,000. The Class A-X
Certificates will not have an initial Certificate Balance, but will represent
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the right to receive distributions of interest accrued as provided in the
Pooling and Servicing Agreement on a hypothetical or notional amount (a
"Notional Amount") equal to $2,482,942,287. The Class B Certificates will have
an initial Certificate Balance of $136,600,000. The Class C Certificates will
have an initial Certificate Balance of $136,600,000. The Class D Certificates
will have an initial Certificate Balance of $136,500,000. The Class E
Certificates will have an initial Certificate Balance of $37,300,000. The Class
F Certificates will have an initial Certificate Balance of $142,700,000. The
Class G Certificates will have an initial aggregate Certificate Balance of
$18,700,000. The Class H Certificates will have an initial Certificate Balance
of $49,600,000. The Class I Certificates will have an initial Certificate
Balance of $24,800,000. The Class J Certificates will have an initial
Certificate Balance of $49,752,297. The Class R, CLass LR, Class V-1 and Class
V-2 Certificates each have an initial Certificate Balance of $0.
Capitalized terms used herein and not otherwise defined shall have the
meanings assigned to them in the Pooling and Servicing Agreement.
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ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION AND
EXHIBITS.
List below the financial statements, pro forma financial information
and exhibits, if any, filed as part of this report.
(a) Financial Statements of Businesses Acquired.
Not applicable
(b) Pro Forma Financial Information.
Not applicable
(c) Exhibits.
1.1 Underwriting Agreement, dated as of June 18, 1998,
among Credit Suisse First Boston Mortgage Securities
Corp. as seller, Credit Suisse First Boston
Corporation and PaineWebber Incorporated as
underwriters.
4.1 Pooling and Servicing Agreement, dated as of June 11,
1998, among Credit Suisse First Boston Mortgage
Securities Corp., as depositor, Banc One Mortgage
Capital, LLC, as servicer, Lennar Partners, Inc., as
special servicer, and State Street Bank and Trust
Company, as trustee.
99.1 Mortgage Loan Purchase Agreement, dated as of June 11,
1998, between Credit Suisse First Boston Mortgage
Capital LLC as seller and Credit Suisse First Boston
Mortgage Securities Corp. as purchaser.
99.2 Mortgage Loan Purchase Agreement, dated as of June
11, 1998, between Paine Webber Real Estate
Securities Inc. as seller and Credit Suisse First
Boston Mortgage Securities Corp. as purchaser.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of
1934, the registrant has duly caused this report to be signed on its behalf by
the undersigned thereunto duly authorized.
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES
CORP., Registrant
By: /s/ Allan J. Baum
Name: Allan J. Baum
Title: Vice President
Dated: July 10, 1998
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INDEX OF EXHIBITS
Exhibit Description
1.1 Underwriting Agreement, dated as of June 18, 1998,
among Credit Suisse First Boston Mortgage Securities
Corp. as seller, Credit Suisse First Boston
Corporation and PaineWebber Incorporated as
underwriters.
4.1 Pooling and Servicing Agreement, dated as of June 11,
1998, among Credit Suisse First Boston Mortgage
Securities Corp., as depositor, Banc One Mortgage
Capital, LLC, as servicer, Lennar Partners, Inc., as
special servicer, and State Street Bank and Trust
Company, as trustee.
99.1 Mortgage Loan Purchase Agreement, dated as of June 11,
1998, between Credit Suisse First Boston Mortgage
Capital LLC as seller and Credit Suisse First Boston
Mortgage Securities Corp. as purchaser.
99.2 Mortgage Loan Purchase Agreement, dated as of June
11, 1998, between Paine Webber Real Estate
Securities Inc. as seller and Credit Suisse First
Boston Mortgage Securities Corp. as purchaser.
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Exhibit 1.1
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
Depositor
Commercial Mortgage Pass-Through Certificates
June 18, 1998
UNDERWRITING AGREEMENT
(Standard Terms)
CREDIT SUISSE FIRST BOSTON CORPORATION
as representative of
the Underwriters named in the
Terms Agreement hereinafter described
c/o Credit Suisse First Boston Corporation
Eleven Madison Avenue
New York, New York 10010
Ladies and Gentlemen:
1. Introductory. Credit Suisse First Boston Mortgage Securities Corp.,
a Delaware corporation (the "Depositor"), proposes to form one or more grantor
trusts or real estate mortgage investment conduits (the "Trusts"), which will
issue, from time to time, securities entitled Credit Suisse First Boston
Mortgage Securities Corp. Commercial Mortgage Pass-Through Certificates (the
"Certificates") in one or more series (each, a "Series"). Each Certificate will
evidence a fractional undivided, percentage interest or beneficial interest in
a Trust. The terms on which each Trust will issue a Series of Certificates will
be specified in the related Prospectus (as defined herein). The property of
each Trust may consist of a pool of one or more mortgage loans secured by first
or junior liens on commercial real estate properties, multifamily residential
properties and/or mixed residential/commercial properties and also may include
participation interests in such types of mortgage loans, installment contracts
for the sale of such types of properties and/or mortgage pass-through
certificates (collectively, the "Loans") that are purchased by the Depositor or
one of its affiliates from one or more sellers (each, a "Seller") pursuant to
one or more Purchase Agreements (each, a "Purchase Agreement") and are serviced
by a servicer, which may be a Seller or an affiliate of a Seller (the
"Servicer"), and are also serviced by a special servicer, which may be an
affiliate of a Seller (the "Special Servicer"), pursuant to a Pooling and
Servicing Agreement (the "Pooling and Servicing Agreement"), dated as of the
date set forth in the Terms Agreement (as identified herein), among the
Depositor, the Servicer, the Special Servicer, a trustee specified therein (the
"Trustee") and such other parties, as necessary, and certain related property
to be conveyed to the Trust by the Depositor (the
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"Trust Fund"). The Loans in the Trust Fund for a Series will be transferred to
the related Trust, and the Certificates to which this agreement (the
"Agreement") and the Terms Agreement for such Series applies will be issued
pursuant to the related Pooling and Servicing Agreement.
Credit enhancement with respect to the Loans included in the Trust
Fund for a Series may be provided by a letter of credit issued pursuant to a
Letter of Credit Agreement, in each case, dated as of the date set forth in the
related Terms Agreement, between the Depositor and a bank or financial
institution named therein (the "Letter of Credit Bank"), or a certificate
guarantee insurance policy (the "Guarantee Policy") issued pursuant to a
Certificate Guarantee Insurance Policy Agreement, in each case, dated as of the
date set forth in such Terms Agreement, by and between the Depositor and an
insurance company named therein (the "Guarantor"), which Guarantee Policy will
guarantee timely distributions of interest and full distributions of principal,
as specified in the Pooling and Servicing Agreement with respect to such
Series. If so specified in the Pooling and Servicing Agreement with respect to
a Series, in lieu of, or in addition to, the foregoing methods of credit
enhancement, credit support may be provided by the subordination of a class or
subclass of Certificates or a fund may be established (the "Reserve Fund") into
which payments on or with respect to a percentage of the Loans included in the
Trust Fund, as specified in such Pooling and Servicing Agreement, will be
deposited. If so specified in the Pooling and Servicing Agreement with respect
to a Series, the Trust Fund for a Series of Certificates may also include one
or more accounts or funds established by the Depositor pursuant to such Pooling
and Servicing Agreement, or one or more methods of credit enhancement in lieu
of, or in addition to, the methods of credit enhancement specified above (the
"Alternative Credit Enhancement").
The Certificates are more fully described in the Registration
Statement (hereinafter defined), which the Depositor has furnished to you. Each
Series of Certificates and any classes or subclasses of Certificates (each, a
"Class" or "Subclass," respectively) within such Series may vary, among other
things, as to the number and types of Classes or Subclasses, the aggregate
principal or notional balance or aggregate stated principal balance, the
pass-through rate with respect to the Loans in the related Trust Fund, the
percentage interest, if any, evidenced by each Class or Subclass in the
payments of principal and interest on, or with respect to, the Loans included
in such Trust Fund, the stated principal balance and interest rate, if any, the
priority of payment among Classes or Subclasses, the method of credit
enhancement with respect to the Loans in such Trust Fund, whether the Depositor
will elect to treat such Trust Fund as a "real estate mortgage investment
conduit" ("REMIC") under the Internal Revenue Code of 1986, as amended (the
"Code"), the Classes or Subclasses of Certificates of such Series subject to
this Agreement, and any other variable terms contemplated by the Pooling and
Servicing Agreement, and in the Certificates, of such Series.
Each offering of the Certificates to which this Agreement applies made
pursuant to the Registration Statement will be made through you as sole
underwriter, through you and other underwriters for whom you are acting as
representative or through an underwriting syndicate managed by you. Whenever
the Depositor determines to form a Trust and to make such an offering of
Certificates, it will enter into an agreement (a "Terms Agreement," which, in
the case of the Terms Agreement dated the date hereof, will be substantially in
the form of Exhibit A hereto) providing for the sale of such Certificates to,
and the purchase and offering thereof by, either (i) you, (ii) you and such
other underwriters, if any, as execute a Terms Agreement and
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agree thereby to become obligated to purchase Certificates from the Depositor
or (iii) you and such other underwriters, if any, selected by you as have
authorized you to enter into such Terms Agreement on their behalf (you and,
collectively with the other underwriters referred to in clause (ii) or clause
(iii), as applicable, the "Underwriters" and, individually, an "Underwriter").
Each Terms Agreement shall specify the fractional undivided interest, principal
or notional balance, or stated principal balance, of each Class or Subclass of
the Certificates to be issued and any terms thereof not otherwise specified in
the related Pooling and Servicing Agreement, the Classes or Subclasses of
Certificates subject to this Agreement, the price at which such Certificates
are to be purchased by the Underwriters from the Depositor, the aggregate
amount of Certificates to be purchased by you and any other Underwriter that is
a party to such Terms Agreement and the initial public offering price or the
method by which the price at which such Certificates are to be sold will be
determined. Any Terms Agreement may take the form of an exchange of any
standard form of written telecommunication between or among the Underwriters
and the Depositor. Each such offering of the Certificates will be governed by
this Agreement, as supplemented by the applicable Terms Agreement, and this
Agreement and such Terms Agreement shall inure to the benefit of and be binding
upon the Underwriters participating in the offering of such Certificates.
2. Representations and Warranties of the Depositor.
The Depositor represents and warrants to you as of the date hereof and
to each of the other Underwriters named in the applicable Terms Agreement as of
the date of such Terms Agreement, as follows:
(a) a registration statement on Form S-3 (No. 333-51771), including a
prospectus and such amendments thereto as may have been required to the date
hereof, relating to the Certificates and the offering thereof from time to time
in accordance with Rule 415 under the Securities Act of 1933, as amended (the
"Act"), in the form heretofore delivered to you, has been filed with the
Securities and Exchange Commission (the "Commission") and has become effective;
such registration statement, as amended (excluding any related Computational
Materials and ABS Term Sheets (each as defined in Section 8(a) below)
previously filed or to be filed and any Computational Materials and ABS Term
Sheets relating to securities other than the Certificates), and the prospectus
relating to the sale of the Certificates offered thereby by the Depositor and
constituting a part of such registration statement, as such prospectus is from
time to time amended or supplemented (including any prospectus filed with the
Commission pursuant to Rule 424(b) of the rules and regulations of the
Commission (the "Rules and Regulations") under the Act), are respectively
referred to herein as the "Registration Statement" and the "Base Prospectus";
provided, however, that a supplement to the Base Prospectus prepared pursuant
to Section 5(a) below (the "Prospectus Supplement" and, together with the Base
Prospectus, the "Prospectus") shall be deemed to have supplemented the Base
Prospectus only with respect to the offering of the Series of the Certificates
to which it relates; the conditions to the use of a registration statement on
Form S-3 under the Act, as set forth in the General Instructions to Form S-3,
and the conditions of Rule 415 under the Act have been satisfied with respect
to the Registration Statement; and no other amendment to the Registration
Statement will be filed which shall be reasonably disapproved by you promptly
after reasonable notice thereof;
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(b) there is no request by the Commission for any further amendment of
the Registration Statement or the Prospectus or for any additional information;
the Commission has not issued any stop order suspending the effectiveness of
the Registration Statement and the Depositor is not aware of any proceeding for
that purpose having been instituted or threatened; and there has been no
notification with respect to the suspension of the qualification for sale of
the Certificates for sale in any jurisdiction or any proceeding for such
purpose having been instituted or threatened;
(c) the Registration Statement (i) on its effective date and on the
date of the then most recently filed Prospectus Supplement conformed in all
respects to the requirements of the Act and the Rules and Regulations
thereunder and did not include any untrue statement of a material fact or omit
to state any material fact required to be stated therein or necessary to make
the statements therein not misleading and (ii) on the date of each Terms
Agreement will conform in all respects to the requirements of the Act and the
Rules and Regulations thereunder and will not include any untrue statement of a
material fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein not misleading; each Prospectus, on
the date of the related Terms Agreement, will conform in all respects to the
requirements of the Act and the Rules and Regulations thereunder and will not
include any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements therein,
in the light of the circumstances under which they were made, not misleading;
provided, however, that the foregoing does not apply to statements in or
omissions from either the Registration Statement or any Prospectus to the
extent based upon and in conformity with (a) written information furnished to
the Depositor by any Underwriter specifically for use therein and (b) the
Seller's Information (as defined in the Indemnification Agreement, dated as of
the date hereof (the "Indemnification Agreement"), by and among the Depositor,
the Seller and you); provided, further, that the Depositor makes no
representations and warranties as to the information contained in or omitted
from any Current Report (as defined in Section 8(a) below), or in any amendment
or supplement thereto, incorporated by reference in the Registration Statement
or any Prospectus (or any amendment thereof or supplement thereto);
(d) the Depositor has been duly organized and is validly existing as a
corporation in good standing under the laws of the State of Delaware, with full
corporate power and authority to own its assets and conduct its business as
described in the Prospectus, is duly qualified as a foreign corporation in good
standing in all jurisdictions in which the ownership or lease of its property
or the conduct of its business requires such qualification, except where the
failure to be so qualified would not have a material adverse effect on the
Depositor, and is conducting its business so as to comply in all material
respects with the applicable statutes, ordinances, rules and regulations of the
jurisdictions in which it is conducting business;
(e) each applicable Pooling and Servicing Agreement and Purchase
Agreement and the Certificates of a Series conform, or will conform as of the
Specified Delivery Date (as defined herein), to the description thereof
contained in the Registration Statement and the Prospectus; and the
Certificates of such Series, on the date of such Terms Agreement, will have
been duly and validly authorized and, when such Certificates are duly and
validly executed by the Depositor or the Trustee, authenticated by the Trustee
and delivered in accordance with such Pooling and Servicing Agreement and
delivered and paid for as provided herein and in such
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Terms Agreement, will be validly issued and outstanding and entitled to the
benefits and security afforded by the Pooling and Servicing Agreement;
(f) the issue and sale of the Certificates and the compliance by the
Depositor with all of the provisions of the Certificates, this Agreement, each
applicable Terms Agreement and each applicable Pooling and Servicing Agreement,
the execution and delivery by the Depositor of this Agreement, each applicable
Terms Agreement, each applicable Pooling and Servicing Agreement, each Purchase
Agreement and, if applicable, the Certificates of a Series related thereto, are
within the corporate power of the Depositor and have been, or will have been,
duly authorized by all necessary corporate action on the part of the Depositor;
and neither the execution and delivery by the Depositor of such instruments,
nor the consummation by the Depositor of the transactions herein or therein
contemplated, nor the compliance by the Depositor with the provisions hereof or
thereof, will (A) conflict with or result in a material breach of, or
constitute a default under, any of the provisions of the certificate of
incorporation or by-laws of the Depositor, (B) conflict with any of the
provisions of any law, governmental rule, regulation, judgment, decree or order
binding on the Depositor or its properties, (C) conflict with any of the
provisions of any indenture, mortgage, contract or other instrument to which
the Depositor is a party or by which it is bound or (D) except as contemplated
by each applicable Pooling and Servicing Agreement, result in the creation or
imposition of any lien, charge or encumbrance upon any of its property or
assets pursuant to the terms of any such indenture, mortgage, contract or other
instrument;
(g) this Agreement has been, and, at the date thereof, each applicable
Terms Agreement will have been, duly authorized, executed and delivered by the
Depositor;
(h) on each Specified Delivery Date, the related Pooling and Servicing
Agreement and Purchase Agreement will have been duly authorized, executed and
delivered by the Depositor and will be valid and binding agreements of the
Depositor, enforceable against the Depositor in accordance with its terms,
except to the extent that enforcement thereof may be limited by (1) bankruptcy,
insolvency, reorganization, moratorium or other similar laws now or hereafter
in effect relating to creditors' rights generally and (2) general principles of
equity (regardless of whether enforceability is considered in a proceeding at
law or in equity);
(i) all approvals, authorizations, consents, orders or other actions
of any person, corporation or other organizations, or of any court,
governmental agency or body or official (except with respect to the state
securities or Blue Sky laws of various jurisdictions) required in connection
with the valid and proper authorization, issuance and sale of the Certificates
of a Series pursuant to this Agreement, the applicable Terms Agreement, and the
applicable Pooling and Servicing Agreement have been or will be taken or
obtained on or prior to the Specified Delivery Date;
(j) the Reserve Fund, if any, with respect to a Series will be
established in accordance with the applicable Pooling and Servicing Agreement
on or prior to the Specified Delivery Date and a UCC-1 financing statement with
respect to such Reserve Fund naming the Trustee for the benefit of the holders
of the Certificates of such Series as secured party has been, or on the
Specified Delivery Date will have been, filed in the office of the Secretary of
State of the state in which the principal trust office of the Trustee is
located and, upon the purchase by
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you of the Certificates subject to this Agreement in the manner contemplated by
this Agreement, and the initial deposit of any amount required to be deposited
therein pursuant to the applicable Pooling and Servicing Agreement, the
Trustee, for the benefit of the holders of the Certificates will, on the date
of such deposit, have a first priority perfected security interest in such
Reserve Fund;
(k) at the Specified Delivery Date, each of the Loans included in the
related Trust Fund will meet the criteria for selection described in the
Prospectus Supplement; and
(l) the characteristics of the Trust Fund with respect to each Series
will not subject the related Trust to registration as an investment company
under the Investment Company Act of 1940, as amended (the "Investment Company
Act"), and the related Pooling and Servicing Agreement is not required to be
qualified under the Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act").
3. Purchase, Sale and Delivery of Certificates. Delivery of and
payment for the Certificates to which this Agreement applies will be made at
such place and at such time as shall be specified in the applicable Terms
Agreement, or at such other time thereafter as set forth in the applicable
Terms Agreement or as you and the Depositor shall agree upon, each such time
being hereinafter referred to as a "Specified Delivery Date." Delivery of such
Certificates shall be made by the Depositor to the Underwriters against payment
of the purchase price specified in the applicable Terms Agreement in same day
funds wired to such bank as may be designated by the Depositor, or by such
other manner of payment as may be agreed upon by the Depositor and you. Unless
otherwise provided for, the Certificates to be so delivered will be in
definitive, fully registered form, in such denominations and registered in such
names as you request, and will be made available for checking and packaging at
the office of Credit Suisse First Boston Corporation, Eleven Madison Avenue,
New York, New York 10010 (or at some other location specified by the
Underwriters at least 48 hours prior to delivery), at least 24 hours prior to
the applicable Specified Delivery Date.
4. Offering by Underwriters. It is understood that the Underwriters
propose to offer the Certificates subject to this Agreement for sale to the
public as set forth in the Prospectus.
5. Covenants of the Depositor. The Depositor covenants and agrees with
you and the Underwriters participating in the applicable offering of the
Certificates that:
(a) immediately following the execution of each Terms Agreement, the
Depositor shall prepare a Prospectus Supplement setting forth the amount of
Certificates covered thereby and the terms thereof not otherwise specified in
the Base Prospectus, the price at which such Certificates are to be purchased
by the Underwriters from the Depositor, either the initial public offering
price or the method by which the price at which such Certificates are to be
sold will be determined, the selling concessions and reallowances, if any, and
such other information as you and the Depositor deem appropriate in connection
with the offering of such Certificates, but the Depositor shall not file any
amendments to the Registration Statement as in effect with respect to the
Certificates, or any amendments or supplements to the Prospectus, unless it has
first delivered copies of such amendments or supplements to you and given you a
reasonable opportunity to review the same, or if you have reasonably objected
thereto promptly after receipt
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thereof; the Depositor shall immediately advise you or your counsel (i) when
notice is received from the Commission that any post-effective amendment to the
Registration Statement has been filed or has become or will become effective or
any supplement to the Prospectus or any amended Prospectus, in each case
relating to the Certificates of the Series specified in such Terms Agreement,
has been filed and will furnish you with copies thereof and (ii) of any order
or communication suspending or preventing, or threatening to suspend or
prevent, the offer and sale of the Certificates or of any proceedings or
examinations that may lead to such an order or communication, whether by or of
the Commission or any authority administering any state securities or Blue Sky
law, as soon as the Depositor is advised thereof, and shall use its best
efforts to prevent the issuance of any such order or communication and to
obtain as soon as possible its lifting, if issued. Subject to the Underwriters'
compliance with their obligations set forth in Section 8 below, the Depositor
shall file with the Commission a Current Report on Form 8-K including any
Computational Materials and ABS Term Sheets provided to it by any Underwriter
pursuant to Section 8 below not later than the date on which such Current
Report is required to be filed with the Commission;
(b) if, at any time when a Prospectus relating to the Certificates is
required to be delivered under the Act, any event occurs as a result of which
the Prospectus as then amended or supplemented would include any untrue
statement of a material fact necessary to make the statements therein, in light
of the circumstances under which they were made, not misleading, or if it is
necessary at any time to amend or supplement the Prospectus to comply with the
Act or the Rules and Regulations, the Depositor shall prepare and file with the
Commission, an amendment or supplement that will correct such statement or
omission or an amendment that will effect such compliance;
(c) the Depositor shall make generally available to the holders of the
Certificates (the "Certificateholders") of the related Series, in each case as
soon as practicable, earning statements covering (i) a period of 12 months
beginning not later than the first day of the related Trust's fiscal quarter
next following the effective date of the Registration Statement and (ii) a
period of 12 months beginning no later than the first day of such Trust's
fiscal quarter next following the date of the related Terms Agreement which
will satisfy the provisions of Section 11(a) of the Act and Rule 158 of the
Commission with respect to the related Series of Certificates. The Depositor
shall cause the Trustee to furnish or make available, within a reasonable time
after the end of each calendar year, to each holder of a Certificate at any
time during such year, such information as the Depositor deems necessary or
desirable to assist Certificateholders in preparing their federal income tax
returns;
(d) the Depositor shall furnish to you copies of the Registration
Statement, the Prospectus, and all amendments and supplements to such documents
relating to the Certificates, in each case as soon as available and in such
quantities as you reasonably request;
(e) the Depositor shall arrange for the qualification of the
Certificates for sale and the determination of their eligibility for investment
under the laws of such jurisdictions as you designate and shall continue such
qualifications in effect so long as required for the distribution; provided,
however, that neither the Depositor nor the applicable Trust shall be required
to qualify to do business in any jurisdiction where it is now not qualified or
to take any action which would
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subject it to general or unlimited service of process in any jurisdiction in
which it is now not subject to service of process;
(f) the Depositor shall, while the Certificates of a Series are
outstanding;
(i) furnish to you, and upon request to each of the other
Underwriters, within 90 days after the close of each fiscal year, appropriate
annual financial statements of the related Trust, certified by a nationally
recognized firm of independent public accountants, in such form as to disclose
its financial condition at the end of, and the results of its operations for,
such fiscal year;
(ii) furnish to you, and upon request to each of the other
Underwriters, as soon as available, copies of all reports filed with the
Commission and copies of each notice published or mailed to holders of the
Certificates pursuant to the related Pooling and Servicing Agreement; and
(iii) furnish to you, and upon request to each of the other
Underwriters, such other information with respect to the related Trust or its
financial condition or results of operations, as you may reasonably request,
including but not limited to information necessary or appropriate to the
maintenance of a secondary market in the Certificates of such Series;
(g) the Depositor shall pay all expenses incident to the performance
of its obligations under this Agreement and the related Terms Agreement and
shall reimburse the Underwriters for any expenses (including fees and
disbursements of its counsel) incurred by them in connection with qualification
of the related Series of Certificates and determination of their eligibility
for investment under the laws of such jurisdictions as you may designate and
the printing of memoranda relating thereto, for any fees charged by such
investment rating agencies for the rating of such Certificates and, to the
extent previously agreed upon with you, for expenses incurred in distributing
the Prospectus (including any amendments and supplements thereto) to the
Underwriters; and
(h) during the period when a prospectus is required by law to be
delivered in connection with the sale of a Series of Certificates pursuant to
this Agreement, the Depositor shall file, or cause the Trustee to file on
behalf of the related Trust, on a timely and complete basis, all documents that
are required to be filed by the related Trust with the Commission pursuant to
Sections 13, 14 or 15(d) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act").
6. Conditions to the Obligations of the Underwriters. The obligations
of the Underwriters named in any Terms Agreement to purchase and pay for the
Certificates of the related Series subject to this Agreement will be subject to
the accuracy of the representations and warranties on the part of the Depositor
as of the date hereof, the date of the applicable Terms Agreement and the
applicable Specified Delivery Date, to the accuracy of the statements of the
Depositor made pursuant to the provisions thereof, to the performance by the
Depositor in all material respects of its obligations hereunder and to the
following additional conditions precedent:
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(a) you shall have received a letter from E&Y Kenneth Leventhal Real
Estate Group dated the date of the applicable Terms Agreement and, if requested
by you, dated the date of the applicable Specified Delivery Date, each in the
forms heretofore agreed to;
(b) all actions required to be taken and all filings required to be
made by the Depositor under the Act prior to the applicable Specified Delivery
Date shall have been duly taken or made; and prior to the applicable Specified
Delivery Date, no stop order suspending the effectiveness of the Registration
Statement shall have been issued and no proceedings for that purpose shall have
been instituted, or to the knowledge of the Depositor or any Underwriter, shall
be contemplated by the Commission;
(c) unless otherwise specified in the applicable Terms Agreement, the
Certificates subject to this Agreement and offered by means of the Registration
Statement shall be rated the ratings specified in the applicable Terms
Agreement;
(d) you shall have received an opinion of counsel to the Letter of
Credit Bank, if any, dated the Specified Delivery Date, and in the form agreed
to on or prior to the date of the applicable Terms Agreement;
(e) you shall have received an opinion of counsel to the Guarantor, if
any, dated the Specified Delivery Date, and in the form agreed to on or prior
to the date of the applicable Terms Agreement;
(f) you shall have received an opinion of counsel to the issuer of the
Alternative Credit Enhancement, if any, dated the Specified Delivery Date, and
in the form agreed to on or prior to the date of the applicable Terms
Agreement;
(g) you shall have received opinions of Orrick, Herrington & Sutcliffe
LLP, special counsel to the Depositor, dated the Specified Delivery Date, in
substantially the same form as Exhibit B attached hereto;
(h) you shall have received an opinion of Colleen A. Graham, Esq.,
counsel to Credit Suisse First Boston Mortgage Capital LLC, one of the Sellers,
dated the Specified Delivery Date, in substantially the same form as Exhibit
C-1 attached hereto;
(i) you shall have received an opinion of White & Case, counsel to
Paine Webber Real Estate Securities Inc., one of the Sellers, dated the
Specified Delivery Date, in substantially the same form as Exhibit C-2 attached
hereto;
(j) you shall have received an opinion of Peabody & Arnold LLP,
special counsel to the Trustee, dated the Specified Delivery Date, in
substantially the same form as Exhibit D attached hereto;
(k) you shall have received an opinion of Squire, Sanders & Dempsey,
L.L.P., counsel to the Servicer, dated the Specified Delivery Date, in
substantially the same form as Exhibit E attached hereto;
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<PAGE>
(l) you shall have received an opinion of Rubin, Baum, Levin,
Constant, Friedman & Bilzin, counsel to the Special Servicer, dated the
Specified Delivery Date, in substantially the same form as Exhibit F attached
hereto;
(m) you shall have received letters, dated the Specified Delivery
Date, from counsel rendering opinions to any nationally recognized statistical
rating organization rating the applicable Series of Certificates, to the effect
that you may rely upon their opinion to such rating organization, as if such
opinion were rendered to you;
(n) you shall have received a certificate or certificates signed by
such of the principal executive, financial and accounting officers of the
Depositor as you may request, dated the Specified Delivery Date, in
substantially the same form as Exhibit G hereto;
(o) you shall have received a certificate of the Trustee, signed by
one or more duly authorized officers of the Trustee, dated the applicable
Specified Delivery Date, in substantially the same form as Exhibit H hereto;
(p) you shall have received a certificate of the Servicer, signed by
one or more duly authorized officers of the Servicer, dated the applicable
Specified Delivery Date, in substantially the same form as Exhibit I hereto;
(q) you shall have received a certificate of the Special Servicer,
signed by one or more duly authorized officers of the Special Servicer, dated
the applicable Specified Delivery Date, in substantially the same form as
Exhibit J hereto;
(r) you shall have received a certificate of the Letter of Credit
Bank, if any, signed by one or more duly authorized officers of the Letter of
Credit Bank, dated the applicable Specified Delivery Date, and in the form
agreed to on or prior to the date of the applicable Terms Agreement;
(s) you shall have received a certificate of the Guarantor, if any,
signed by one or more duly authorized officers of the Guarantor, dated the
applicable Specified Delivery Date, and in the form agreed to on or prior to
the date of the applicable Terms Agreement;
(t) you shall have received a certificate of the issuer of the
Alternative Credit Enhancement, if any, signed by one or more duly authorized
officers of the issuer of the Alternative Credit Enhancement, dated the
applicable Specified Delivery Date, and in the form agreed to on or prior to
the date of the applicable Terms Agreement;
(u) the Sellers shall have sold the Loans to the Depositor pursuant to
the Purchase Agreements;
(v) the Certificates of a Series shall be rated at the time of
issuance by any nationally recognized statistical rating organization(s) in the
rating category as indicated in the applicable Terms Agreement, and shall not
have been lowered or placed on any credit watch with a negative implication for
downgrade;
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(w) you shall have received an opinion of counsel to the Letter of
Credit Bank, the Guarantor or the issuer of the Alternative Credit Enhancement,
if any, dated the Specified Delivery Date, and in the form agreed to on or
prior to the date of the applicable Terms Agreement; and
(x) you shall have received such other documents, certificates,
letters and opinions as you may reasonably request.
7. Indemnification.
(a) The Depositor shall indemnify and hold harmless each Underwriter,
each of its officers and each of its directors and each person, if any, that
controls any Underwriter within the meaning of the Act against any losses,
claims, damages or liabilities, joint or several, to which such Underwriter or
such controlling person may become subject, under the Act or otherwise, insofar
as such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon (i) any untrue statement or alleged untrue
statement of any material fact contained in the Registration Statement or any
amendment or supplement thereto or the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading or (ii) any untrue statement or alleged
untrue statement of any material fact contained in any Prospectus or any
amendment or supplement thereto or the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading; and the Depositor shall reimburse each Underwriter and each
such controlling person for any legal or other expenses reasonably incurred by
such Underwriter and each such controlling person in connection with
investigating or defending any such loss, claim, damage, liability or action;
provided, however, that the Depositor shall not be liable in any such case to
the extent that any such loss, claim, damage or liability arises out of or is
based upon any such untrue statement or alleged untrue statement in, or
omission or alleged omission from, any such documents in reliance upon and in
conformity with (i) written information furnished to the Depositor by an
Underwriter specifically for use therein or (ii) the Seller's Information and
except insofar as such losses, claims, damages or liabilities are caused by any
untrue statement or alleged untrue statement contained in, or any omission or
alleged untrue statement from, any Current Report or any amendment or
supplement thereof; provided, further, that the Depositor shall not be liable
to any Underwriter or any such controlling person under the indemnity agreement
in this Section 7(a) with respect to any untrue statement in, or omission from,
the Prospectus, to the extent that any such loss, claim, damage or liability of
such Underwriter or such controlling person results solely from the fact that
such Underwriter sold Certificates to a person to whom there was not sent or
given, at or prior to the written confirmation of such sale, a copy of the
Prospectus or a copy of the Prospectus as then amended or supplemented, if the
Depositor had previously furnished copies thereof to such Underwriter. This
indemnity agreement shall be in addition to any liability which the Depositor
may otherwise have.
(b) Each Underwriter shall severally, and not jointly, indemnify and
hold harmless the Depositor, each of its directors, each of its officers who
has signed the Registration Statement and each person, if any, who controls the
Depositor within the meaning of the Act against any losses, claims, damages or
liabilities to which the Depositor or any such director, officer, or
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controlling person may become subject, under the Act or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon (i) any untrue statement or alleged untrue
statement of any material fact contained in the Registration Statement or any
amendment or supplement thereto or the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, (ii) any untrue statement or alleged untrue
statement of any material fact contained in any Prospectus or any amendment or
supplement thereto or the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading or (iii)(A) any untrue statement or alleged untrue statement of any
material fact contained in the Computational Materials or ABS Term Sheets, as
applicable, that such Underwriter provides to its respective potential
investors or (B) the omission or the alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, and shall reimburse any legal or other expenses
reasonably incurred by the Depositor or any such director, officer or
controlling person in connection with investigating or defending any such loss,
claim, damage, liability or action; in each case to the extent, but only to the
extent that any such untrue statement or alleged untrue statement or omission
or alleged omission was made in reliance upon and in conformity with written
information furnished to the Depositor by such Underwriter specifically for use
therein. This indemnity agreement shall be in addition to any liability that
such Underwriter may otherwise have.
(c) Promptly after receipt by an indemnified party under this Section
7 of notice of the commencement of any action, such indemnified party shall, if
a claim in respect thereof is to be made against the indemnifying party under
this Section 7, notify the indemnifying party of the commencement thereof; but
the omission to so notify the indemnifying party shall not relieve it from any
liability which it may have to any indemnified party otherwise than in this
Section 7. In case any such action is brought against any indemnified party,
after such indemnifying party has been notified of the commencement thereof,
such indemnifying party shall be entitled to participate therein, and, to the
extent that it may wish, shall be entitled to assume the defense thereof
(jointly with any other indemnifying party similarly notified) with counsel
satisfactory to such indemnified party (which shall not, except with the
consent of the indemnified party, be counsel to the indemnifying party), and
after notice from the indemnifying party to such indemnified party of its
election to so assume the defense thereof, the indemnifying party shall not be
liable to such indemnified party under this Section 7 for any legal or other
expenses subsequently incurred by such indemnified party in connection with the
defense thereof other than reasonable costs of investigation.
(d) If recovery is not available under the foregoing indemnification
provisions of this Section 7 for any reason other than as specified therein,
the parties entitled to indemnification by the terms thereof shall be entitled
to contribution to liabilities and expenses, except to the extent that
contribution is not permitted under Section 11(f) of the Act. In determining
the amount of contribution to which the respective parties are entitled, there
shall be considered the relative benefits received by each party from the
offering of the Certificates subject to this Agreement (taking into account the
portion of the proceeds of the offering realized by each), the parties'
relative knowledge and access to information concerning the matter with respect
to which the claim was asserted, the opportunity to correct and prevent any
statement or omission and any other equitable considerations appropriate under
the circumstances. The Depositor and the
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Underwriters agree that it would not be equitable if the amount of such
contribution were determined by pro rata or per capita allocation (even if the
Underwriters were treated as one entity for such purpose). No Underwriter or
person controlling such Underwriter shall be obligated to make contribution
hereunder which in the aggregate exceeds the total public offering price of the
Certificates purchased by such Underwriter under this Agreement, less the
aggregate amount of any damages which such Underwriter and its controlling
persons have otherwise been required to pay in respect of the same claim or any
substantially similar claim. The obligations of the Underwriters in this
subdivision (d) to contribute are several in proportion to their respective
underwriting obligations and not joint.
(e) The obligations of the Depositor under this Section 7 shall be in
addition to any liability which the Depositor may otherwise have and shall
extend, upon the same terms and conditions, to each person, if any, who
controls any Underwriter within the meaning of the Act; and the obligations of
the Underwriters under this Section 7 shall be in addition to any liability
which the respective Underwriters may otherwise have and shall extend, upon the
same terms and conditions, to each officer and director of the Depositor and to
each person, if any, who controls the Depositor within the meaning of the Act.
8. Computational Materials.
(a) The Underwriters agree to provide to the Depositor not later than
10:30 a.m., New York time, on the Business Day before the date on which a
Current Report on Form 8-K is required to be filed by the Depositor with the
Commission pursuant to the No-Action Letters (as defined below) (each, a
"Current Report") five complete copies of all materials that have been provided
by the Underwriters to prospective investors in the related Certificates and
that constitute (i) "Computational Materials" within the meaning of the
no-action letter dated May 20, 1994 and issued by the Division of Corporation
Finance of the Commission to Kidder, Peabody Acceptance Corporation I, Kidder,
Peabody & Co. Incorporated and Kidder Structured Asset Corporation and the
no-action letter dated May 27, 1994 and issued by the Division of Corporation
Finance of the Commission to the Public Securities Association (together, the
"Kidder Letters") and (ii) "ABS Term Sheets" within the meaning of the
no-action letter dated February 17, 1995 and issued by the Division of
Corporation Finance of the Commission to the Public Securities Association
(together with the Kidder Letters, the "No-Action Letters"), and the
Underwriters acknowledge that the filing of such materials is a condition of
relief granted in such letter (such materials, the "Computational Materials"
and the "ABS Term Sheets", respectively); provided, however, that any ABS Term
Sheets are subject to the review and approval of the Depositor prior to their
distribution to any prospective investors, and a copy of all such ABS Term
Sheets and Computational Materials as are delivered to prospective investors
shall, in addition to the foregoing delivery requirements, be delivered to the
Depositor simultaneously with delivery thereof to prospective investors. Each
delivery of Computational Materials and ABS Term Sheets to the Depositor
pursuant to this Section 8(a) shall be effected by delivering four copies of
such materials to counsel for the Depositor on behalf of the Depositor and one
copy of such materials to the Depositor.
(b) As of the date of this Agreement and as of the related Specified Delivery
Date, each of the Underwriters represents and warrants to, and agrees with, the
Depositor and with each other Underwriter that: (i) the Computational Materials
and ABS Term Sheets furnished to
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the Depositor pursuant to Section 8(a) above, if any, constitute (either in
original, aggregated or consolidated form) all of the materials furnished to
prospective investors by such Underwriter that is required to be filed with the
Commission with respect to the related Certificates in accordance with the
No-Action Letters, and such Computational Materials and ABS Term Sheets comply
with the requirements of the No-Action Letters; (ii) on the date any such
Computational Materials and ABS Term Sheets with respect to such Certificates
(or any written or electronic materials furnished to prospective investors on
which such Computational Materials and ABS Term Sheets are based) were last
furnished to each prospective investor and on the date of delivery thereof to
the Depositor pursuant to Section 8(a) above and on such Specified Delivery
Date, such Computational Materials and ABS Term Sheets (or materials) were
accurate in all material respects when read in conjunction with the Prospectus
(taking into account the assumptions explicitly set forth in the Computational
Materials), except to the extent of any errors therein that are caused by
errors in the Seller's Information (as that term is defined in the
Indemnification Agreement); (iii) such Underwriter will not represent to
potential investors that any Computational Materials and ABS Term Sheets were
prepared or disseminated on behalf of the Depositor; and (iv) all Computational
Materials and ABS Term Sheets (or underlying materials distributed to
prospective investors on which the Computational Materials and ABS Term Sheets
were based) shall bear a legend substantially in the form attached hereto as
Exhibit K. Notwithstanding the foregoing, the Underwriters make no
representation or warranty as to whether any Computational Materials and ABS
Term Sheets (or any written or electronic materials furnished to prospective
investors on which the Computational Materials and ABS Term Sheets are based),
if any, included or will include any inaccurate statement resulting directly
from any error contained in the Seller's Information.
(c) In the event that any Computational Materials and ABS Term Sheets
that are required to be filed were based on assumptions with respect to the
Loans that are incorrect or that differ from the final Loans or Seller's
Information in any material respect or were based on Certificate structuring
terms that were revised in any material respect prior to the printing of the
Prospectus, the Underwriters shall prepare revised Computational Materials or
ABS Term Sheets, as the case may be, based on the final Seller's Information
and structuring assumptions, shall circulate such revised Computational
Materials and ABS Term Sheets to all recipients of the preliminary versions
thereof that indicated orally to the Underwriters they would purchase all or
any portion of the Certificates, and shall include such revised Computational
Materials or ABS Term Sheets (marked "as revised") in the materials delivered
to the Depositor pursuant to Section 8(a) above.
(d) Each Underwriter agrees, severally and not jointly, to indemnify
and hold harmless the Depositor, each of the Depositor's officers and directors
and each person who controls the Depositor within the meaning of either the Act
or the Exchange Act and each other Underwriter against any and all losses,
claims, damages or liabilities, joint or several, to which they may become
subject under the Act, the Exchange Act, or other federal or state statutory
law or regulation, at common law or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) (i) are based on, result
from or arise out of: (A) such Underwriter's use or delivery to any prospective
investor in the Certificates of any Computational Materials or ABS Term Sheet,
(B) such Underwriter's failure to comply with Section 8(a), 8(b) or 8(c) hereof
or (C) the filing by the Depositor with the Commission of any information
pursuant to the last sentence of Section 5(a) above or (ii) arise out of or are
based
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upon any untrue statement or alleged untrue statement of a material fact
contained in any information required to be delivered to the Depositor by such
Underwriter pursuant to Section 8(a), 8(b) or 8(c) hereof, or arise out of or
are based upon the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein,
in the light of the circumstances under which they were made, not misleading,
and agrees to reimburse each such indemnified party for any legal or other
expenses reasonably incurred by him, her or it in connection with investigating
or defending any such loss, claim, damage, liability or action. The obligations
of the Underwriters under this Section 8 shall be in addition to any liability
which the Underwriters may otherwise have.
The procedures set forth in Section 7(c) above shall be equally applicable to
this Section 8(d).
(e) In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in Section 8(d) above
is due in accordance with its terms but is for any reason held by a court to be
unavailable from the Underwriters on the grounds of policy or otherwise, the
Depositor and the Underwriters, severally and not jointly, shall contribute to
the aggregate losses, claims, damages and liabilities (including legal or other
expenses reasonably incurred in connection with investigating or defending
same) to which the Depositor and the Underwriters may be subject in such
proportion as is appropriate to reflect the relative fault of the Underwriters
on the one hand and the Depositor on the other in connection with the actions,
statements or omissions that resulted in such loss, claims, damages or
liabilities. The relative fault of the Underwriters on the one hand and the
Depositor on the other shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Underwriters or by the Depositor and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission.
The Underwriters, severally and not jointly, and the Depositor agree that it
would not be just and equitable if contribution pursuant to this Section 8(e)
were determined by pro rata allocation or by any other method of allocation
that does not take into account the equitable contribution referred to in the
immediately preceding paragraph.
The right of contribution to which the Depositor is entitled under this Section
8(e) shall be equally available to each of the Depositor's officers and
directors and each person who controls the Depositor within either the meaning
of the Act or the Exchange Act.
(f) Notwithstanding any other provision herein, the Underwriters,
severally and not jointly, agree to pay all costs and expenses of the Depositor
incurred in connection with (i) the filing by the Depositor of any
Computational Material or ABS Term Sheets with the Commission and (ii) any
action by the Depositor against the Underwriters to enforce any of its rights
set forth in this Section 8, including, without limitation, legal fees and
expenses if it prevails.
9. Default of Underwriters. If any Underwriter or Underwriters
participating in an offering of Certificates default in their obligations to
purchase Certificates hereunder and under the related Terms Agreement and the
aggregate principal amount of such Certificates which such defaulting
Underwriter or Underwriters agreed, but failed, to purchase does not exceed 10%
of
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the total principal amount of the Certificates set forth in such Terms
Agreement, you may make arrangements satisfactory to the Depositor for the
purchase of such Certificates by other persons, including any of the
Underwriters participating in such offering, but if no such arrangements are
made within a period of 36 hours after the applicable Specified Delivery Date,
the non-defaulting Underwriters shall be obligated severally, in proportion to
their respective total commitments hereunder and under such Terms Agreement, to
purchase the Certificates which such defaulting Underwriter or Underwriters
agreed, but failed, to purchase. If any Underwriter or Underwriters so default
and the aggregate principal amount of Certificates with respect to which such
default or defaults occur is more than 10% of the total principal amount of the
Certificates set forth in such Terms Agreement and arrangements satisfactory to
you and the Depositor for the purchase of such Certificates by other persons
are not made within 36 hours after such default, this Agreement shall terminate
without liability on the part of any non-defaulting Underwriter or the
Depositor, except as provided in Section 11 below. As used in this Agreement,
the term "Underwriter" includes any person substituted for an Underwriter under
this Section 9. Nothing herein shall relieve a defaulting Underwriter from
liability for its default.
10. Termination of the Obligations of the Underwriters. The
obligations of the Underwriters to purchase on the related Specified Delivery
Date the Certificates described in the related Terms Agreement shall be
terminable by such Underwriters if (a) at any time on or prior to such
Specified Delivery Date (i) trading in securities generally on the New York
Stock Exchange shall have been suspended or materially limited, or there shall
have been any setting of minimum prices for trading on such exchange, (ii) a
general moratorium on commercial banking activities in New York shall have been
declared by any Federal or New York State authorities, (iii) there shall have
occurred any material outbreak or escalation of hostilities or other calamity
or crisis, the effect of which on the financial markets of the United States is
such as to make it, in your judgment as representative of such Underwriters,
impracticable to consummate the transactions contemplated herein or is such as
would materially and adversely affect the marketability of or the market price
for such Certificates or (iv) any change or any development involving a
prospective change occurs, materially and adversely affecting (A) the related
Trust Fund taken as a whole or (B) the business or properties of the Depositor,
which, in your reasonable judgment as representative of such Underwriters, in
the case of either (A) or (B), materially impairs the investment quality of the
Certificates or (b) any representation or warranty of another party shall be
incorrect in any material respect.
11. Survival of Certain Representations and Obligations. The
respective indemnities, agreements, representations, warranties and other
statements by the Depositor and of the several Underwriters set forth in or
made pursuant to this Agreement shall remain in full force and effect,
regardless of any investigation or statement as to the results thereof made by
or on behalf of such Underwriters, the Depositor or any of its officers or
directors or any controlling person, and shall survive delivery of and payment
of the related Certificates.
If this Agreement is terminated pursuant to Section 9 or Section 10
above or if for any reason the purchase by the Underwriters of the Certificates
described in the related Terms Agreement is not consummated, the Depositor
shall remain responsible for the expenses to be paid or reimbursed by it
pursuant to Section 5(g) above, and the obligations of the Depositor and such
Underwriters pursuant to Section 7 and Section 9 above shall remain in effect.
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12. Notices. All communications hereunder shall be in writing and, if
sent to Credit Suisse First Boston Corporation, shall be mailed, delivered or
telecopied to it at Eleven Madison Avenue, New York, New York 10010 and to any
other Underwriter at such address, if any, as is specified in writing to the
Depositor for notices hereunder or, if sent to the Depositor, shall be mailed,
delivered or telecopied to it at Eleven Madison Avenue, New York, New York
10010 Attention: President; provided, however, that any notice to an
Underwriter pursuant to Section 7 shall be mailed, delivered or telegraphed to
such Underwriter at the address furnished by it.
13. Successors. This Agreement shall inure to the benefit of and be
binding upon the parties hereto and their respective successors and the
officers, directors and controlling persons referred to in Section 7 above, and
their successors and assigns, and no other person shall have any right or
obligation hereunder. No purchaser of any Certificates from any Underwriter
shall be deemed a successor or assign by reason merely of such purchase.
14. APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
15. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
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If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us a counterpart hereof, whereupon it will
become a binding agreement among the Depositor and the several Underwriters in
accordance with its terms. Alternatively, the execution of this Agreement by
the Depositor and its acceptance by or on behalf of the Underwriters may be
evidenced by an exchange of telegraphic or other written communications.
Very truly yours,
CREDIT SUISSE FIRST BOSTON MORTGAGE
SECURITIES CORP.,
as Depositor
By: /s/ Allan J. Baum
------------------------------
Name: Allan J. Baum
Title: Vice President
The foregoing Agreement is hereby confirmed and accepted as of the date first
above written.
CREDIT SUISSE FIRST BOSTON CORPORATION,
as Underwriter
By: /s/ Debra Huddleston
----------------------------------
Name: Debra Huddleston
Title: Vice President
<PAGE>
EXHIBIT A
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
Commercial Mortgage Pass-Through Certificates,
Series 1998-C1
TERMS AGREEMENT
Dated: June 18, 1998
To: Credit Suisse First Boston Mortgage Securities Corp., as depositor
under the Pooling and Servicing Agreement dated as of
June 11, 1998
Re: Underwriting Agreement dated June 18, 1998
Registration Statement No. 333-51771
Base Prospectus dated June 11, 1998
Prospectus Supplement dated June 18, 1998 (together with the Base Prospectus,
the "Prospectus")
Title: Commercial Mortgage Pass-Through Certificates, Series 1998-C1
Principal Amount: $2,197,390,000 (approximate)
Aggregate Purchase Price to be Paid by Credit Suisse First Boston Corporation:
$2,052,971,865, plus accrued interest
Aggregate Purchase Price to be Paid by PaineWebber Incorporated:
$375,966,459, plus accrued interest
Pooling and Servicing Agreement: By and among Credit Suisse First Boston
Mortgage Securities Corp. (the "Depositor"), Banc One Mortgage Capital Markets,
LLC (the "Servicer"), Lennar Partners, Inc. (the "Special Servicer") and State
Street Bank and Trust Company (the "Trustee", dated as of June 11, 1998
Underwriters: Credit Suisse First Boston Corporation and PaineWebber
Incorporated
Sellers: Credit Suisse First Boston Mortgage Capital LLC
Paine Webber Real Estate Securities Inc.
CSFBMC Mortgage Loan Purchase Agreement: By and between the Depositor and
Credit Suisse First Boston Mortgage
Capital LLC, one of the Sellers,
dated as of June 25, 1998
PWRES Mortgage Loan Purchase Agreement: By and between the Depositor and
Paine Webber Real Estate Securities
Inc., one of the Sellers, dated as
of June 25, 1998
A-1
<PAGE>
(together with the CSFBMC Mortgage
Loan Purchase Agreement, the
"Mortgage Loan Purchase
Agreements")
Series Cut-off Date: June 11, 1998
Certificate Rating (Fitch / Moody's / S&P):
Class A-1A AAA/Aaa/AAA
Class A-1B AAA/Aaa/AAA
Class A-2MF AAA/Aaa/AAA
Class A-X AAA/Aaa/AAA
Class B AA/NR/AA
Class C A/NR/A
Class D BBB/NR/BBB
Class E BBB-/NR/BB-
Pass-Through Rate: Class A-1A 6.26%
Class A-1B 6.48%
Class A-2MF 6.42%
Class A-X Variable
Class B 6.59%
Class C 6.78%
Class D 7.17%
Class E Variable
Contracts: None
Distribution Dates: The 17th day of each month (unless such day is not a
business day, in which case, distributions will be made on the next succeeding
business day), commencing in July 1998; provided, however, that no Distribution
Date will fall on a date that is fewer than four business days after the
related Determination Date
Specified Delivery Date and Location: 10:00 a.m., New York time, on June 25,
1998, or at such other time not later than seven full business days thereafter
as may be agreed upon, at the offices of Orrick, Herrington & Sutcliffe LLP,
New York, New York
The Class A-1A, Class A-1B2, Class A-2MF, Class A-X, Class B, Class C,
Class D and Class E Certificates will be issued as one or more certificates
registered in the name of Cede & Co., the nominee of The Depository Trust
Company ("DTC"). Beneficial owners will hold interests in the Class A-1A, Class
A-1B, Class A-2MF, Class B, Class C, Class D and Class E Certificates through
the book-entry facilities of DTC in minimum denominations of initial
Certificate Balance of $10,000 and in integral multiples of $1,000 in excess
thereof. Beneficial owners will hold interests in the Class A-X Certificates
through the book-entry facilities of DTC in minimum denominations of initial
Notional Balance of $100,000 and in integral multiples of $10,000 in excess
thereof.
A-2
<PAGE>
The Class F, Class G, Class H, Class I, Class J, Class V-1, Class V-2,
Class R and Class LR Certificates issued pursuant to the Pooling and Servicing
Agreement are not subject to this Terms Agreement.
The parties hereto agree that this Terms Agreement does hereby
incorporate by reference, and they agree to be bound to the extent of their
respective obligations by, the terms and provisions of the Underwriting
Agreement (Standard Terms) dated June 18, 1998, between the Depositor and
Credit Suisse First Boston Corporation, as representative of the Underwriters
(the "Underwriting Agreement"), in the form attached hereto, including, without
limitation, Section 8 thereof.
In addition, the parties hereto agree that each Underwriter shall
provide a copy of any Computational Materials prepared by such Underwriter to
the other Underwriter at least [48 hours] prior to the time such Computational
Materials are delivered to prospective investors, and that no Computational
Materials shall be delivered to prospective investors unless and until the data
in such Computational Materials is reviewed and agreed by the other
Underwriter.
Subject to the terms and conditions set forth herein and in the
Underwriting Agreement, the Depositor agrees to cause to be issued and sold to
the Underwriters, and the Underwriters hereto agree, subject to the terms and
provisions of the Underwriting Agreement, which is incorporated by reference
herein and made a part hereof, to purchase the principal amount of the
Certificates.
A-3
<PAGE>
Notwithstanding anything in the Underwriting Agreement or in this
Terms Agreement to the contrary, the Underwriting Agreement and this Terms
Agreement constitute the entire agreement and understanding among the parties
hereto with respect to the purchase and sale of the Offered Certificates. This
Terms Agreement may be amended only by written agreement of the parties hereto.
Capitalized terms not otherwise defined herein shall have the meanings assigned
to them in the Prospectus.
Very truly yours,
CREDIT SUISSE FIRST BOSTON
CORPORATION,
as Underwriter
By: /s/ Debra Huddleston
------------------------------
Name: Debra Huddleston
Title: Vice President
PAINEWEBBER INCORPORATED,
as Underwriter
By: /s/ Steven J. Plust
------------------------------
Name: Steve J. Plust
Title: Managing Director
The foregoing Agreement is hereby confirmed and accepted as of the date first
above written.
CREDIT SUISSE FIRST BOSTON MORTGAGE
SECURITIES CORP.,
as Depositor
By: /s/ Allan J. Baum
--------------------------------
Name: Allan J. Baum
Title: Vice President
A-4
<PAGE>
ANNEX A
Certificates Purchased
Certificate Balances
<TABLE>
<CAPTION>
Class A-1A Class A-1B Class A-2MF Class A-X Class B
Certificate Certificate Certificate Certificate Certificate
Underwriter Balance Balance Balance Balance Balance
------- ------- ------- ------- -------
<S> <C> <C> <C> <C> <C>
Credit Suisse
First Boston
Corporation $ 364,400,000 $ 891,100,000 $ 222,890,000 $ 2,482,557,297 $ 115,600,000
PaineWebber
Incorporated 67,000,000 164,000,000 41,000,000 385,000 21,000,000
----------------- ------------------- ---------------- ------------------- ----------------
Total $ 431,400,000 $ 1,055,100,000 $ 263,890,000 $ 2,482,942,297 $ 136,600,000
================= =================== ================ =================== ================
</TABLE>
<TABLE>
<CAPTION>
Class C Class D Class E
Certificate Certificate Certificate
Underwriter Balance Balance Balance
------- ------- -------
<S> <C> <C> <C>
Credit Suisse
First Boston
Corporation $ 115,600,000 $ 115,500,000 $ 34,300,000
PaineWebber
Incorporated 21,000,000 21,000,000 3,000,000
----------------- ----------------- ----------------
Total $ 136,600,000 $ 136,500,000 $ 37,300,000
================= ================= ================
</TABLE>
<PAGE>
EXHIBIT B
Form of Opinion of Orrick, Herrington & Sutcliffe LLP,
Special Counsel to the Depositor
[To be provided]
<PAGE>
EXHIBIT C-1
Form of Opinion of Colleen A. Graham,
Counsel to Credit Suisse First Boston Mortgage Capital LLC, one of the Sellers
[To be provided]
C-1-1
<PAGE>
EXHIBIT C-2
Form of Opinion of White & Case,
Counsel to Paine Webber Real Estate Securities Inc., one of the Sellers
[To be provided]
C-2-1
<PAGE>
EXHIBIT D
Form of Opinion of Peabody & Arnold LLP
Special Counsel to the Trustee
[To be provided]
D-1
<PAGE>
EXHIBIT E
Form of Opinion of Squire, Sanders & Dempsey, L.L.P.
Counsel to the Servicer
[To be provided]
E-1
<PAGE>
EXHIBIT F
Form of Opinion of Rubin, Baum, Levin, Constant, Friedman & Bilzin,
Counsel to the Special Servicer
[To be provided]
F-1
<PAGE>
EXHIBIT G
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
Commercial Mortgage Pass-Through Certificates
Series 1998-C1
Form of Depositor
OFFICER'S CERTIFICATE
I, ___________________ , do hereby certify that I am the duly elected
Vice President of Credit Suisse First Boston Mortgage Securities Corp., a
Delaware corporation (the "Depositor"), and further certify as follows:
1. The representations and warranties of the Depositor in the
Underwriting Agreement and the Pooling and Servicing Agreement are true and
correct.
2. The Depositor has complied with all agreements and satisfied all
conditions on its part to be performed or satisfied at or prior to the
Specified Delivery Date.
3. No stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose have been
instituted or, to my knowledge, are contemplated.
4. Subsequent to the respective dates as of which information is given
in the Prospectus, and except as set forth or contemplated in the Prospectus,
there has not been any material adverse change in the general affairs,
capitalization, financial condition or results of operations of the Depositor.
5. There are no material actions, suits or proceedings pending before
any court or governmental agency, authority or body or, to my knowledge,
threatened, affecting the Depositor or the transactions contemplated by the
Underwriting Agreement.
6. Nothing has come to my attention that would lead me to believe that
the Registration Statement, at the time it became effective and at the date
hereof, contains any untrue statement of a material fact or omits to state any
material fact required to be stated therein or necessary to make the statements
therein not misleading, or that the Prospectus at the date thereof and at the
date hereof, contains any untrue statement of a material fact or omits to state
any material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading.
7. No proceedings looking toward merger, liquidation, dissolution or
bankruptcy of the Depositor are pending or contemplated.
8. The Depositor is in good standing (including the payment of all
franchise taxes and the filing of required reports) under the laws of the State
of Delaware and is duly qualified to do business in the State of New York,
which is the only jurisdiction in which the Depositor conducts material
operations.
G-1
<PAGE>
Capitalized terms used but otherwise not defined herein shall have the
meanings assigned to them in the Underwriting Agreement, dated June 18, 1998,
between the Depositor and Credit Suisse First Boston Corporation, as
representative of the several Underwriters, as amended by the Terms Agreement,
dated June 18, 1998, between the Depositor, Credit Suisse First Boston
Corporation and PaineWebber Incorporated (together, the "Underwriting
Agreement").
IN WITNESS WHEREOF, I have hereunto signed my name this day of June
1998.
By:
-----------------------------
Name:
Title:
G-2
<PAGE>
EXHIBIT H
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
Commercial Mortgage Pass-Through Certificates
Series 1998-C1
Form of Trustee
OFFICER'S CERTIFICATE
I, ______________________ , do hereby certify that I am the duly
elected [_________] of State Street Bank and Trust Company (the "Trustee"), a
Massachusetts trust company, and further certify as follows:
1. The Trustee has been duly organized and is validly existing and in
good standing under the laws of the Commonwealth of Massachusetts and is duly
qualified to do business and in good standing under the laws of each
jurisdiction in which the performance of its duties under the Agreement (as
defined herein) would require such qualification, or if not so qualified, will
appoint a co-trustee that is so qualified.
2. The Certificates have been duly authorized, executed and delivered
by the Trustee and are entitled to the benefits of the Pooling and Servicing
Agreement.
3. The Agreement has been duly authorized, executed and delivered by
the Trustee and (assuming the due authorization, execution and delivery of the
other parties thereto) is a valid and binding agreement of the Trustee,
enforceable against the Trustee in accordance with its terms, except to the
extent that enforcement thereof may be limited by (A) bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in effect
relating to creditors' rights generally, and the rights of creditors of banks,
and (B) general principles of equity (regardless of whether enforceability is
considered in a proceeding at law or in equity).
4. The execution and delivery by the Trustee of the Agreement is
within the power of the Trustee and has been duly authorized by all necessary
action on the part of the Trustee; and neither the execution and delivery of
such instrument by the Trustee nor the consummation by the Trustee of the
transactions therein contemplated, nor compliance with the provisions thereof
by the Trustee, will (A) conflict with or result in a breach of, or will
constitute a default under, any of the provisions of the organization
certificate or bylaws of the Trustee or any law, governmental rule or
regulation, or any judgment, decree or order binding on the Trustee or its
properties, or any of the provisions of any indenture, mortgage, deed of trust,
contract or other instrument to which the Trustee is a party or by which it is
bound or (B) result in the creation or imposition of any lien, charge or
encumbrance upon any of its properties pursuant to the terms of any such
indenture, mortgage, deed of trust, contract or other instrument.
5. The Trustee holds all material licenses, certificates and permits
from all governmental authorities necessary for the performance of its
obligations under the Agreement or, if it does not hold any such license,
certificate or permit, will appoint a co-trustee that does hold such license,
certificate or permit, and the Trustee has received no notice of proceedings
relating to the revocation of any such license, certificate or permit, which
singly or in the
H-1
<PAGE>
aggregate, if the subject of any unfavorable decision, ruling or finding, would
materially affect the conduct of the business, results of operations, net worth
or condition (financial or otherwise) of the Trustee; and the Trustee has the
power and authority to perform its obligations under the Pooling and Servicing
Agreement.
6. The certificates issued pursuant to Credit Suisse First Boston
Mortgage Securities Corp. Commercial Mortgage Pass-Through Certificates, Series
1998-C1 (the "Certificates"), dated the date hereof and provided for by the
Pooling and Servicing Agreement, have been executed and authenticated on behalf
of the Trust by Responsible Officers of the Trustee.
7. The Certificates have on or before this date been delivered, by the
Trustee, to or on the order of the Depositor.
Capitalized terms used but otherwise not defined herein shall have the
meanings assigned to them in the Pooling and Servicing Agreement, dated as of
June 11, 1998 (the "Agreement"), among Credit Suisse First Boston Mortgage
Securities Corp., as Depositor, Banc One Mortgage Capital LLC, as Servicer,
Lennar Partners, Inc., as Special Servicer, and State Street Bank and Trust
Company, as Trustee.
IN WITNESS WHEREOF, I have hereunto signed my name, this day of June
1998.
By:
-----------------------------
Name:
Title:
H-2
<PAGE>
EXHIBIT I
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
Commercial Mortgage Pass-Through Certificates
Series 1998-C1
Form of Servicer
OFFICER'S CERTIFICATE
I, ________________, do hereby certify that I am the duly elected
__________ of Banc One Mortgage Capital Markets LLC ("Banc One") (in its
capacity as Servicer, the "Servicer"), a national banking association, and
further certify as follows:
1. The Servicer has been duly organized and is validly existing and in
good standing under the laws of the State of Delaware, and is in compliance
with the laws of each state in which any Mortgaged Property (as defined in the
Pooling and Servicing Agreement) is located to the extent necessary to perform
its obligations under the Pooling and Servicing Agreement.
2. The Pooling and Servicing Agreement has been duly authorized,
executed and delivered by the Servicer and (assuming due authorization,
execution and delivery by the other parties thereto) is a valid and binding
agreement of the Servicer, enforceable against the Servicer in accordance with
its terms, except to the extent that enforcement thereof may be limited by (A)
bankruptcy, insolvency, reorganization, moratorium or other similar laws now or
hereafter in effect relating to creditors' rights generally and (B) general
principles of equity (regardless of whether enforceability is considered in a
proceeding at law or in equity).
3. The Servicer has the power and authority to conduct its business as
contemplated by the Pooling and Servicing Agreement.
4. The execution and delivery by the Servicer of the Pooling and
Servicing Agreement is within the power of the Servicer and has been duly
authorized by all necessary action on the part of the Servicer; and neither the
execution and delivery of the Pooling and Servicing Agreement by the Servicer,
nor the consummation by the Servicer of the transactions therein contemplated,
nor compliance with the provisions thereof by the Servicer, will (A) conflict
with or result in a breach of, or will constitute a default under, any of the
provisions of the articles of association or bylaws of the Servicer or any law,
governmental rule or regulation, or any judgment, decree or order binding on
the Servicer or its properties, or any of the provisions of any indenture,
mortgage, deed of trust, contract or other instrument to which the Servicer is
a party or by which it is bound or (B) result in the creation or imposition of
any lien, charge or encumbrance upon any of its properties pursuant to the
terms of any such indenture, mortgage, deed of trust, contract or other
instrument.
5. The Servicer holds all material licenses, certificates and permits
from all governmental authorities necessary for the conduct of its business as
required by the Pooling and Servicing Agreement and has received no notice of
proceedings relating to the revocation of any such license, certificate or
permit, which singly or in the aggregate, if the subject of any
I-1
<PAGE>
unfavorable decision, ruling or finding, would materially affect the conduct of
the business, results of operations, net worth or condition (financial or
otherwise) of the Servicer.
Capitalized terms used but otherwise not defined herein shall have the
meanings assigned to them in the Pooling and Servicing Agreement, dated as of
June 11, 1998, (the "Pooling and Servicing Agreement"), among Credit Suisse
First Boston Mortgage Securities Corp., as Depositor, Banc One Mortgage Capital
Markets, LLC, as Servicer, Lennar Partners, Inc., as Special Servicer, and
State Street Bank and Trust Company, as Trustee.
IN WITNESS WHEREOF, I have hereunto signed my name (in my capacity as
officer of Banc One, and not individually) this day of June 1998.
By:
-----------------------------
Name:
Title:
I-2
<PAGE>
EXHIBIT J
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
Commercial Mortgage Pass-Through Certificates
Series 1998-C1
Form of Special Servicer
OFFICER'S CERTIFICATE
I, ________________ , do hereby certify that I am the duly elected
______________________ of Lennar Partners, Inc. (the "Special Servicer"), a
Florida corporation, and further certify as follows:
1. The Special Servicer has been duly incorporated and is validly
existing and in good standing under the laws of the State of Florida, and is
duly qualified to do business as a foreign corporation and in good standing
under the laws of each jurisdiction in which the performance of its duties
under the Pooling and Servicing Agreement would require such qualification.
2. The Pooling and Servicing Agreement has been duly authorized,
executed and delivered by the Special Servicer and (assuming due authorization,
execution and delivery by the other parties thereto) is a valid and binding
agreement of the Special Servicer, enforceable against the Special Servicer in
accordance with its terms, except to the extent that enforcement thereof may be
limited by (A) bankruptcy, insolvency, reorganization, moratorium or other
similar laws now or hereafter in effect relating to creditors' rights
generally, and (B) general principles of equity (regardless of whether
enforceability is considered in a proceeding at law or in equity).
3. The Special Servicer has the corporate power and authority to
conduct its business as described in the Prospectus Supplement.
4. The execution and delivery by the Special Servicer of the Pooling
and Servicing Agreement is within the corporate power of the Special Servicer
and has been duly authorized by all necessary corporate action on the part of
the Special Servicer; and neither the execution and delivery of the Pooling and
Servicing Agreement by the Special Servicer, nor the consummation by the
Special Servicer of the transactions therein contemplated, nor compliance with
the provisions thereof by the Special Servicer, will (A) conflict with or
result in a breach of, or constitute a default under, any of the provisions of
the certificate of incorporation or bylaws of the Special Servicer or any law,
governmental rule or regulation, or any judgment, decree or order binding on
the Special Servicer or its properties, or any of the provisions of any
indenture, mortgage, deed of trust, contract or other instrument to which the
Special Servicer is a party or by which it is bound or (B) result in the
creation or imposition of any lien, charge or encumbrance upon any of its
properties pursuant to the terms of any such indenture, mortgage, deed of
trust, contract or other instrument.
5. The Special Servicer holds all material licenses, certificates and
permits from all governmental authorities necessary for the conduct of its
business as described in the Prospectus
J-1
<PAGE>
Supplement and has received no notice of proceedings relating to the revocation
of any such license, certificate or permit, which singly or in the aggregate,
if the subject of any unfavorable decision, ruling or finding, would materially
affect the conduct of the business, results of operations, net worth or
condition (financial or otherwise) of the Special Servicer.
Capitalized terms used but otherwise not defined herein shall have the
meanings assigned to them in the Pooling and Servicing Agreement, dated as of
June 11, 1998 (the "Pooling and Servicing Agreement"), among Credit Suisse
First Boston Mortgage Securities Corp., as Depositor, Banc One Mortgage Capital
Markets, LLC, as Servicer, Lennar Partners, Inc., as Special Servicer, and
State Street Bank and Trust Company, as Trustee.
IN WITNESS WHEREOF, I have hereunto signed my name this day of June
1998.
By:
-----------------------------
Name:
Title:
J-2
<PAGE>
EXHIBIT K
Form of Computational Material/ABS Term Sheet Legend
Prospective investors are advised to carefully read, and should rely solely on,
the final prospectus and prospectus supplement (the "Final Prospectus")
relating to the securities referred to herein in making their investment
decision. This Computational Material/ABS Term Sheet does not include all
relevant information relating to the securities and collateral described
herein, particularly with respect to the risks and special considerations
associated with an investment in such securities. All structural and collateral
information contained herein is preliminary and it is anticipated that such
information will change. Any information contained herein will be more fully
described in, and will be fully superseded by, the description of the
collateral and structure in the preliminary prospectus supplement and Final
Prospectus. Although the information contained in this Computational
Material/ABS Term Sheet is based on sources which PaineWebber Incorporated
("PaineWebber") believes to be reliable, PaineWebber makes no representation or
warranty that such information is accurate or complete. Such information should
not be viewed as projections, forecasts, predictions or opinions with respect
to value. PaineWebber and its affiliates may in the future have positions in
the securities discussed herein and may purchase or sell the same on a
principal basis or as agent for another person. In addition, PaineWebber may
act as an underwriter of such securities, and PaineWebber and certain of its
affiliates may currently be providing investment banking and other services to
the issuer of such securities and the borrowers described herein and their
affiliates. Prior to making any investment decision, a prospective investor
should fully review the Final Prospectus. NOTHING HEREIN SHOULD BE CONSIDERED
AN OFFER TO SELL OR SOLICITATION OF AN OFFER TO BUY ANY SECURITIES.
K-1
<PAGE>
Exhibit 4.1
EXECUTION COPY
===============================================================================
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.,
Depositor
BANC ONE MORTGAGE CAPITAL MARKETS, LLC,
Servicer
LENNAR PARTNERS, INC.,
Special Servicer
STATE STREET BANK AND TRUST COMPANY,
Trustee
POOLING AND SERVICING AGREEMENT
Dated as of June 11, 1998
$2,482,942,297
Commercial Mortgage Pass-Through Certificates
Series 1998-C1
===============================================================================
<PAGE>
<TABLE>
<CAPTION>
TABLE OF CONTENTS
PAGE
ARTICLE I
DEFINITIONS
<S> <C> <C>
Section 1.01. Defined Terms ........................................................6
Section 1.02. Certain Calculations.................................................54
Section 1.03. Loan Identification Convention.......................................55
ARTICLE II
CONVEYANCE OF LOANS; ORIGINAL ISSUANCE OF CERTIFICATES
Section 2.01. Conveyance of Loans..................................................56
Section 2.02. Acceptance by Trustee................................................58
Section 2.03. Representations, Warranties and Covenants of the Depositor;
Mortgage Loan Seller's Repurchase of Loans for Defects in
Mortgage Files and Breaches of Representations and Warranties........60
Section 2.04. Execution of Certificates............................................62
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................................63
Section 3.02. Collection of Loan Payments..........................................64
Section 3.03. Collection of Taxes, Assessments and Similar Items;
Servicing Accounts...................................................65
Section 3.04. The Certificate Account, Distribution Accounts, CSFBMC
Excess Interest Distribution Account, PWRES Excess Interest
Distribution Account and Yield Protection Payment Account............67
Section 3.05. Permitted Withdrawals from the Certificate Account and the
Distribution Accounts................................................71
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. ....................................................74
Section 3.07. Maintenance of Insurance Policies; Errors and Omissions and
Fidelity Coverage ...................................................76
Section 3.08. Enforcement of Due-On-Sale and Due-On-Encumbrance Clauses;
Assumption Agreements; Defeasance Provisions.........................80
Section 3.09. Realization upon Defaulted Loans.....................................84
Section 3.10. Trustee to Cooperate; Release of Mortgage Files......................87
-i-
<PAGE>
TABLE OF CONTENTS
(CONTINUED) PAGE
Section 3.11. Servicing Compensation...............................................88
Section 3.12. Reports to the Trustee; Certificate Account Statements...............91
Section 3.13. Annual Statement as to Compliance....................................95
Section 3.14. Reports by Independent Public Accountants............................95
Section 3.15. Access to Certain Information........................................96
Section 3.16. Title to REO Property; REO Account...................................96
Section 3.17. Management of REO Property...........................................97
Section 3.18. Sale of Defaulted Loans and REO Properties...........................99
Section 3.19. Additional Obligations of the Servicer and Special Servicer;
Inspections; Appraisals.............................................101
Section 3.20. Modifications, Waivers, Amendments and Consents.....................103
Section 3.21. Transfer of Servicing Between Servicer and Special Servicer;
Record Keeping; Asset Status Report.................................107
Section 3.22. Sub-Servicing Agreements............................................111
Section 3.23. Representations and Warranties of the Servicer......................113
Section 3.24. Representations and Warranties of the Special Servicer..............115
Section 3.25. RESERVED ...........................................................117
Section 3.26. RESERVED ...........................................................117
Section 3.27. Limitation on Liability of the Directing Certificateholder..........117
Section 3.28. Reports to the Securities and Exchange Commission; Available
Information ........................................................117
Section 3.29. Lock-Box Accounts and Servicing Accounts............................119
Section 3.30. Interest Reserve Account............................................120
Section 3.31. Limitations on and Authorizations of the Servicer and Special
Servicer with Respect to Certain Loans..............................120
Section 3.32. REMIC Administration................................................123
Section 3.33. The Ritz-Carlton Loan...............................................126
ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS
Section 4.01. Distributions ......................................................128
Section 4.02. Statements to Certificateholders; Reports by Trustee; Other
Information Available to the Holders and Others.....................136
Section 4.03. P&I Advances; Yield Protection Payment Advances.....................141
-ii-
<PAGE>
TABLE OF CONTENTS
(CONTINUED) PAGE
Section 4.04. Allocation of Collateral Support Deficit............................144
Section 4.05. Appraisal Reductions................................................145
Section 4.06. Certificate Deferred Interest.......................................145
Section 4.07. Grantor Trust Reporting.............................................146
Section 4.08. Fixed Rate Reserve Account..........................................146
ARTICLE V
THE CERTIFICATES
Section 5.01. The Certificates ...................................................148
Section 5.02. Registration of Transfer and Exchange of Certificates...............149
Section 5.03. Book-Entry Certificates.............................................156
Section 5.04. Mutilated, Destroyed, Lost or Stolen Certificates...................159
Section 5.05. Persons Deemed Owners...............................................159
ARTICLE VI
THE DEPOSITOR, THE SERVICER AND THE SPECIAL SERVICER
Section 6.01. Liability of the Depositor, the Servicer and the Special Servicer...160
Section 6.02. Merger, Consolidation or Conversion of the Depositor, the
Servicer or the Special Servicer....................................160
Section 6.03. Limitation on Liability of the Depositor, the Servicer, the
Special Servicer and Others.........................................160
Section 6.04. Depositor, Servicer and Special Servicer Not to Resign..............162
Section 6.05. Rights of the Depositor in Respect of the Servicer and the
Special Servicer ...................................................162
ARTICLE VII
DEFAULT
Section 7.01. Events of Default; Servicer and Special Servicer Termination........163
Section 7.02. Trustee to Act; Appointment of Successor............................165
Section 7.03. Notification to Certificateholders..................................167
Section 7.04. Waiver of Events of Default.........................................167
Section 7.05. Trustee Advances ...................................................167
ARTICLE VIII
CONCERNING THE TRUSTEE
Section 8.01. Duties of Trustee ..................................................169
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TABLE OF CONTENTS
(CONTINUED) PAGE
Section 8.02. Certain Matters Affecting the Trustee...............................170
Section 8.03. Trustee Not Liable for Validity or Sufficiency of
Certificates or Loans...............................................172
Section 8.04. Trustee May Own Certificates........................................172
Section 8.05. Fees and Expenses of Trustee; Indemnification of Trustee............172
Section 8.06. Eligibility Requirements for Trustee................................173
Section 8.07. Resignation and Removal of the Trustee..............................173
Section 8.08. Successor Trustee ..................................................174
Section 8.09. Merger or Consolidation of Trustee..................................175
Section 8.10. Appointment of Co-Trustee or Separate Trustee.......................175
Section 8.11. Appointment of Custodians...........................................176
Section 8.12. Access to Certain Information.......................................176
Section 8.13. Representations and Warranties of the Trustee.......................178
ARTICLE IX
TERMINATION; PURCHASE OF ARD LOANS
Section 9.01. Termination Upon Repurchase or Liquidation of All Loans.............180
Section 9.02. Additional Termination Requirements.................................182
Section 9.03. Purchase of ARD Loans...............................................183
ARTICLE X
MISCELLANEOUS PROVISIONS
Section 10.01. Amendment ..........................................................184
Section 10.02. Recordation of Agreement; Counterparts..............................186
Section 10.03. Limitation on Rights of Certificateholders..........................186
Section 10.04. Governing Law ......................................................187
Section 10.05. Notices ............................................................187
Section 10.06. Severability of Provisions..........................................188
Section 10.07. Grant of a Security Interest........................................188
Section 10.08. Successors and Assigns; Beneficiaries...............................189
Section 10.09. Article and Section Headings........................................189
Section 10.10. Notices to Rating Agencies..........................................189
</TABLE>
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This Pooling and Servicing Agreement (the "Agreement"), is dated as of
June 11, 1998, among Credit Suisse First Boston Mortgage Securities Corp., as
Depositor, Banc One Mortgage Capital Markets, LLC, as Servicer, Lennar
Partners, Inc., as Special Servicer, and State Street Bank and Trust Company,
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 323
multifamily and commercial mortgage loans and the beneficial ownership interest
in a separate REMIC (the "Ritz-Carlton REMIC Asset") consisting of one
commercial mortgage loan (all such mortgage loans, collectively, the "Loans").
As provided herein, the Trustee shall elect or shall cause an election to be
made that each of the Upper-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").
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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 Initial
case of the Class A-X Ratings(1)
Class Certificates, Original Fitch/Moody's
Designation Pass-Through Rate Notional Balance) /S&P
- ----------- ----------------- ----------------- ----
Class A-1A 6.260% $ 431,400,000 AAA/Aaa/AAA
Class A-1B 6.480% $1,055,100,000 AAA/Aaa/AAA
Class A-2MF 6.420% $ 263,890,000 AAA/Aaa/AAA
Class A-X (2) $2,482,942,297(3) AAA/Aaa/AAAr
Class B 6.590% $ 136,600,000 AA/NR/AA
Class C 6.780% $ 136,600,000 A/NR/A
Class D 7.170% $ 136,500,000 BBB/NR/BBB
Class E (4) $ 37,300,000 BBB-/NR/BBB-
Class F 6.000% $ 142,700,000 NR/NR/BB
Class G 6.000% $ 18,700,000 NR/NR/BB-
Class H 6.000% $ 49,600,000 NR/NR/B
Class I 6.000% $ 24,800,000 B-/NR/NR
Class J 6.000% $ 49,752,297 NR/NR/NR
Class R None(5) None(5) NA
(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 7.340% 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-1A, Class A-1B, Class A-2MF, 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
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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 LA-1A, Class LA-1B, Class LA-2MF, Class LB, Class LC,
Class LD, Class LE, Class LF, Class LG, Class LH, Class LI and Class LJ
Uncertificated Interests (in each case, excluding the right to receive Yield
Protection Payments) will evidence "regular interests" in the Lower-Tier REMIC
(the "Lower-Tier REMIC Regular Interests") created hereunder. The sole Class of
"residual interests" in the Lower-Tier REMIC created hereunder will be
evidenced by the Class LR Certificates.
The following table sets forth the initial Lower-Tier Principal
Amounts and per annum rates of interest for the Uncertificated Lower-Tier
Interests:
LOWER-TIER REMIC
Original Lower-
Class Interest Rate Tier Principal
----- ------------- --------------
Class LA-1A (1) $ 431,400,000
Class LA-1B (1) $1,055,100,000
Class LA-2MF (1) $ 263,890,000
Class LB (1) $ 136,600,000
Class LC (1) $ 136,600,000
Class LD (1) $ 136,500,000
Class LE (1) $ 37,300,000
Class LF (1) $ 142,700,000
Class LG (1) $ 18,700,000
Class LH (1) $ 49,600,000
Class LI (1) $ 24,800,000
Class LJ (1) $ 49,752,297
Class LR None(2) None(2)
(1) The interest rate of each of the indicated classes of Uncertificated
Lower-Tier Interests is the Weighted Average Net Mortgage Rate.
(2) The Class LR Certificates 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 Lower-Tier
Distribution Account after distributing the Lower-Tier Distribution
Amount on each Distribution Date shall be distributed to the Holders of
the Class LR Certificates.
The parties intend that (i) the portion of the Trust Fund representing
CSFBMC Excess Interest, PWRES Excess Interest, the CSFBMC Excess Interest
Distribution Account, the PWRES Excess Interest Distribution Account, 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-1 Certificates shall represent
undivided beneficial interests in the portion of the Trust Fund consisting of
the CSFBMC Excess Interest and the CSFBMC Excess Interest Distribution Account,
(iii) the Class
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V-2 Certificates shall represent undivided beneficial interests in the portion
of the Trust Fund consisting of the PWRES Excess Interest and the PWRES Excess
Interest Account and (iv) 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
$2,482,942,297.
In consideration of the mutual agreements herein contained, the
Depositor, the Servicer, the Special Servicer and the Trustee agree as follows:
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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-2MF 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 any Unscheduled Payments of Principal.
"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.
"Accountant's Statement": As defined in Section 3.14.
"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. 8, 48 and 65 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 to it 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.
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<PAGE>
"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 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
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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 or
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.
"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.
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<PAGE>
"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 and 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) CSFBMC Excess Interest and PWRES Excess Interest.
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<PAGE>
(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 (net of the related Servicing Fee with respect
to any such Loans as to which such P&I Advances are made).
"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-1A, Class A-1B, Class A-2MF, 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, Texas or Florida or the
Commonwealth of Massachusetts 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
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Account monies are swept on a regular basis for the benefit of the Trustee as
successor to the related 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.
"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-C1,
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
"Banc One Mortgage Capital Markets, LLC, in trust for State Street Bank and
Trust Company, as Trustee for the benefit of Holders of Credit Suisse First
Boston Mortgage Securities Corp., Commercial Mortgage Pass-Through
Certificates, Series 1998-C1, 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 thereafter, 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(a)(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
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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 Register" and "Certificate Registrar": The register
maintained and the registrar appointed pursuant to Section 5.02.
"Class": With respect to any Certificates or Uncertificated Lower-Tier
Interests, all of the Certificates or Uncertificated Lower-Tier Interests
bearing the same alphabetical (and, if applicable, numerical) Class -----
designation.
"Class A Certificate": Any Class A-1A, Class A-1B or Class A-2MF
Certificate.
"Class A-1A Certificate": A Certificate designated as "Class A-1A" on
the face thereof, substantially in the form of Exhibit A-1 hereto.
"Class A-1A Pass-Through Rate": 6.260% per annum.
"Class A-1B Certificate": A Certificate designated as "Class A-1B" on
the face thereof, substantially in the form of Exhibit A-2 hereto.
"Class A-1B Pass-Through Rate": 6.480% per annum.
"Class A-2MF Certificate": A Certificate designated as "Class A-2MF"
on the face thereof, substantially in the form of Exhibit A-3 hereto.
"Class A-2MF Pass-Through Rate": 6.420% per annum.
"Class A-X Certificate": A Certificate designated as "Class A-X" on
the face thereof, in the form of Exhibit A-4 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
Lower-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.
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"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-5 hereto.
"Class B Pass-Through Rate": 6.590% per annum.
"Class C Certificate": A Certificate designated as "Class C" on the
face thereof, in the form of Exhibit A-6 hereto.
"Class C Pass-Through Rate": 6.780% per annum.
"Class D Certificate": A Certificate designated as "Class D" on the
face thereof, in the form of Exhibit A-7 hereto.
"Class D Pass-Through Rate": 7.170% per annum.
"Class E Certificate": A Certificate designated as "Class E" on the
face thereof, in the form of Exhibit A-8 hereto.
"Class E Pass-Through Rate": As to any Distribution Date, a per annum
rate equal to the lesser of (i) 7.340% and (ii) the Weighted Average Net
Mortgage Rate for such Distribution Date.
"Class F Certificate": A Certificate designated as "Class F" on the
face thereof, in the form of Exhibit A-9 hereto.
"Class F Pass-Through Rate": 6.000% per annum.
"Class G Certificate": A Certificate designated as "Class G" on the
face thereof, in the form of Exhibit A-10 hereto.
"Class G Pass-Through Rate": 6.000% per annum.
"Class H Certificate": A Certificate designated as "Class H" on the
face thereof, in the form of Exhibit A-11 hereto.
"Class H Pass-Through Rate": 6.000% per annum.
"Class I Certificate": A Certificate designated as "Class I" on the
face thereof, in the form of Exhibit A-12 hereto.
"Class I Pass-Through Rate": 6.000% per annum.
"Class J Certificate": A Certificate designated as "Class J" on the
face thereof, in the form of Exhibit A-13 hereto.
"Class J Pass-Through Rate": 6.000% per annum.
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" Class LA-1A Uncertificated Interest": A regular interest in the
Lower-Tier REMIC that is held as an asset of the Upper-Tier REMIC and having
the Original Lower-Tier Principal Amount and per annum rate of interest set
forth in the Preliminary Statement hereto.
" Class LA-1B Uncertificated Interest": A regular interest in the
Lower-Tier REMIC that is held as an asset of the Upper-Tier REMIC and having
the Original Lower-Tier Principal Amount and per annum rate of interest set
forth in the Preliminary Statement hereto.
"Class LA-2MF Uncertificated Interest": A regular interest in the
Lower-Tier REMIC that is held as an asset of the Upper-Tier REMIC and having
the Original Lower-Tier Principal Amount and per annum rate of interest set
forth in the Preliminary Statement hereto.
"Class LB Uncertificated Interest": A regular interest in the
Lower-Tier REMIC that is held as an asset of the Upper-Tier REMIC and having
the Original Lower-Tier Principal Amount and per annum rate of interest set
forth in the Preliminary Statement hereto.
"Class LC Uncertificated Interest": A regular interest in the
Lower-Tier REMIC that is held as an asset of the Upper-Tier REMIC and having
the Original Lower-Tier Principal Amount and per annum rate of interest set
forth in the Preliminary Statement hereto.
"Class LD Uncertificated Interest": A regular interest in the
Lower-Tier REMIC that is held as an asset of the Upper-Tier REMIC and having
the Original Lower-Tier Principal Amount and per annum rate of interest set
forth in the Preliminary Statement hereto.
"Class LE Uncertificated Interest": A regular interest in the
Lower-Tier REMIC that is held as an asset of the Upper-Tier REMIC and having
the Original Lower-Tier Principal Amount and per annum rate of interest set
forth in the Preliminary Statement hereto.
"Class LF Uncertificated Interest": A regular interest in the
Lower-Tier REMIC that is held as an asset of the Upper-Tier REMIC and having
the Original Lower-Tier Principal Amount and per annum rate of interest set
forth in the Preliminary Statement hereto.
"Class LG Uncertificated Interest": A regular interest in the
Lower-Tier REMIC that is held as an asset of the Upper-Tier REMIC and having
the Original Lower-Tier Principal Amount and per annum rate of interest set
forth in the Preliminary Statement hereto.
"Class LH Uncertificated Interest": A regular interest in the
Lower-Tier REMIC that is held as an asset of the Upper-Tier REMIC and having
the Original Lower-Tier Principal Amount and per annum rate of interest set
forth in the Preliminary Statement hereto.
"Class LI Uncertificated Interest": A regular interest in the
Lower-Tier REMIC that is held as an asset of the Upper-Tier REMIC and having
the Original Lower-Tier Principal Amount and per annum rate of interest set
forth in the Preliminary Statement hereto.
"Class LJ Uncertificated Interest": A regular interest in the
Lower-Tier REMIC that is held as an asset of the Upper-Tier REMIC and having
the Original Lower-Tier Principal Amount and per annum rate of interest set
forth in the Preliminary Statement hereto.
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"Class LR Certificate": A Certificate designated as "Class LR" on the
face thereof, in the form of Exhibit A-17 hereto.
"Class R Certificate": A Certificate designated as "Class R" on the
face thereof, in the form of Exhibit A-16 hereto.
"Class V-1 Certificate": A Certificate designated as "Class V-1" on
the face thereof, in the form of Exhibit A-14 hereto. The Class V-1
Certificates have no Pass-Through Rate, Certificate Balance or notional
balance.
"Class V-2 Certificate": A Certificate designated as "Class V-2" on
the face thereof, in the form of Exhibit A-15 hereto. The Class V-2
Certificates have no Pass-Through Rate, Certificate Balance or notional
balance.
"Closing Date": June 25, 1998.
"Code": The Internal Revenue Code of 1986.
"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 substantially containing 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 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 LA-1A Component: The amount, if any, by which the Weighted
Average Net Mortgage Rate for such Distribution Date exceeds the Class
A-1A Pass-Through Rate.
Class LA-1B Component: The amount, if any, by which the Weighted
Average Net Mortgage Rate for such Distribution Date exceeds the Class
A-1B Pass-Through Rate.
Class LA-2MF Component: The amount, if any, by which the Weighted
Average Net Mortgage Rate for such Distribution Date exceeds the Class
A-2MF Pass-Through Rate.
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Class LB 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 LC 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 LD 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 LE 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 LF 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 LG 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 LH 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 LI 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 LJ 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.
"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 Two
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International Place - 5th Floor, Boston, Massachusetts 02110, Attention: Credit
Suisse First Boston Mortgage Securities Corp., Series 1998-C1.
"Corrected Loan": Any Specially Serviced Loan that has become current
and remained current for three consecutive Monthly Payments (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) (provided that no additional Servicing Transfer Event was
foreseeable in the reasonable judgment of the Special Servicer).
"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.
"CSFBMC Excess Interest": With respect to each of the ARD Loans that
is a CSFBMC Loan, interest accrued on such Loan and allocable to the CSFBMC
Excess Rate. The CSFBMC Excess Interest is an asset of the Trust Fund, but
shall not be an asset of the Lower-Tier REMIC or the Upper-Tier REMIC formed
hereunder.
"CSFBMC 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 "State Street Bank
and Trust Company, as Trustee, in trust for Holders of Credit Suisse First
Boston Mortgage Securities Corp., Commercial Mortgage Pass-Through
Certificates, Series 1998-C1, CSFBMC Excess Interest Distribution Account" and
which shall be an Eligible Account. The CSFBMC Excess Interest Distribution
Account shall not be an asset of the Lower-Tier REMIC or the Upper-Tier REMIC
formed hereunder.
"CSFBMC Excess Rate": With respect to each ARD Loan that is a CSFBMC
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.
"CSFBMC Loan": Any loan transferred to the Depositor by Credit Suisse
First Boston Mortgage Capital LLC pursuant to the related Mortgage Loan
Purchase Agreement and identified as such on the Mortgage Loan Schedule.
"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 the Mortgage Loan Seller or an Affiliate
of either of them.
"Cut-off Date": June 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.
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"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": As defined in Section 5.01(a).
"Delinquent Loan Status Report": A report prepared by the Servicer
substantially containing 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.
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"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 immediately succeeding
Business 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 will 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.
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"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 and the Lower-Tier Distribution Account.
"Distribution Date": The 17th day of any month, or if such 17th day is
not a Business Day, the immediately succeeding Business Day, commencing in July
1998; provided, however, that no Distribution Date shall be a day less than
four Business Days following the related Determination Date.
"Distribution Date Statement": As defined in Section 4.02(a).
"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 S&P and Moody's)), "AA-" by S&P and "Aa3", by
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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 "A-1" from S&P, "P-1" by Moody's and "F-1+" from Fitch (if rated by
Fitch (or, if not rated by Fitch, then having the indicated ratings from S&P
and 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. Eligible Accounts may bear interest.
No Eligible Account shall be evidenced by a certificate of deposit, passbook or
other similar instrument.
"Eligible Investor": 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.
"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.
"Event of Default": One or more of the events described in Section
7.01(a).
"Excess Interest": Either CSFBMC Excess Interest or PWRES Excess
Interest, as applicable.
"Excess Rate": Either the CSFBMC Excess Rate or the PWRES Excess Rate,
as applicable.
"Exchange Act": The Securities Exchange Act of 1934, as amended from
time to time.
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"Exchange Act Report": A monthly Distribution Date Statement,
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.
"FDIC": Federal Deposit Insurance Corporation or any successor.
"FHLMC": Federal Home Loan Mortgage Corporation or any successor.
"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 applicable
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-1 or Class V-2 Certificates, as applicable, pursuant to Section 9.03 or
(iv) by the applicable Mortgage Loan Seller, 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.
"Fixed Rate Reserve Account": The custodial account or accounts
created and maintained as a segregated account or accounts by the Servicer
pursuant to Section 4.08 which shall be entitled "Banc One Mortgage Capital
Markets LLC, in trust for State Street Bank and Trust Company, as Trustee for
the benefit of Holders of Credit Suisse First Boston Mortgage Securities Corp.
Commercial Mortgage Pass-Through Certificates, Series 1998-C1, Fixed Reserve
Account" and which shall be an Eligible Account. The Fixed Rate Reserve Account
shall not be an asset of the Lower-Tier REMIC or the Upper-Tier REMIC formed
hereunder.
"FNMA": Federal National Mortgage Association or any successor
thereto.
"Group 1 Available Distribution Amount: With respect to any
Distribution Date, the Available Distribution Amount relating to the Mortgage
Loans in Loan Group 1.
"Group 2 Available Distribution Amount: With respect to any
Distribution Date, the Available Distribution Amount relating to the Mortgage
Loans in Loan Group 2.
"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.
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"Historical Loan Modification Report": With respect to each Servicer
Remittance Date, a report prepared by the 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 substantially containing 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).
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"Initial Purchasers": Credit Suisse First Boston Corporation and
PaineWebber Incorporated, as initial purchasers 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 "Banc One Mortgage
Capital Markets, LLC, as Servicer, for the benefit of State Street Bank and
Trust Company, as Trustee, in trust for Holders of Credit Suisse First Boston
Mortgage Securities Corp., Commercial Mortgage Pass-Through Certificates,
Series 1998-C1, Interest Reserve Account" and which shall be an Eligible
Account.
"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.
"Investment Account": As defined in Section 3.06(a).
"Investment Representation Letter": As defined in Section 5.02(b).
"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
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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 non-cancelable 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 applicable 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-1 or Class V-2 Certificates pursuant to Section 9.03 or (vi) the purchase of
such Loan by a Mortgage Loan Seller, 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 applicable 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-1 or
Class V-2 Certificates pursuant to Section 9.03; or (vi) the purchase of all
Loans by the Mortgage Loan Sellers, Holders
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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 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 (other than the
Ritz-Carlton Loan), to the extent applicable, the Loan Agreement, the Mortgage,
the Note, the Assignment of Leases (if separate from Mortgage), the Security
Agreement, 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 liabilities 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.
With respect to the Ritz-Carlton Loan, as defined in the Ritz-Carlton REMIC
Agreement.
"Loan Group 1": Collectively, the Loans identified on the Mortgage
Loan Schedule as Loan Group 1 Mortgage Loans.
"Loan Group 2": Collectively, the Loans identified on the Mortgage
Loan Schedule as Loan Group 2 Mortgage Loans.
"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 Mortgage Loan Seller and the
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 "State Street Bank and
Trust Company, as Trustee, in trust for the registered
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Holders of Credit Suisse First Boston Mortgage Securities Corp., Commercial
Mortgage Pass-Through Certificates, Series 1998-C1, 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, (i) on or prior to the first Distribution
Date, an amount equal to the Original Lower-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)).
"Lower-Tier REMIC": One of two 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 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.
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"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, 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.
"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": With respect to any Loan (other than the Ritz-Carlton
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 State Street
Bank and Trust Company, as trustee for the registered Holders of
Credit Suisse First Boston Mortgage Securities Corp., Commercial
Mortgage Pass-Through Certificates, Series 1998-C1, without recourse,
representation or warranty, express or implied";
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(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 complete and recordable form, from the applicable
Mortgage Loan Seller to "State Street Bank and Trust Company, as
trustee for the registered Holders of Credit Suisse First Boston
Mortgage Securities Corp., Commercial Mortgage Pass-Through
Certificates, Series 1998-C1";
(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 complete
and recordable form, from the applicable Mortgage Loan Seller to
"State Street Bank and Trust Company, as trustee for the registered
Holders of Credit Suisse First Boston Mortgage Securities Corp.,
Commercial Mortgage Pass-Through Certificates, Series 1998-C1";
(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 complete
and recordable form, from the applicable Mortgage Loan Seller to
"State Street Bank and Trust Company, as trustee for the registered
Holders of Credit Suisse First Boston Mortgage Securities Corp.,
Commercial Mortgage Pass-Through Certificates, Series 1998-C1";
(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;
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(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 that is complete and 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
intercreditor 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 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; and
(xviii) any additional documents required to be added to the
Mortgage File pursuant to this Agreement;
provided, however, that 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.
With respect to the Ritz-Carlton Loan, as defined in the Ritz-Carlton REMIC
Agreement.
"Mortgage Interest Accrual Period": With respect to any Loan, the
period during which interest accrues pursuant to the related Note.
"Mortgage Loan Purchase Agreement": With respect to either Mortgage
Loan Seller, the agreement between the Depositor and such Mortgage Loan Seller,
dated as of June 11, 1998,
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relating to the transfer of all of such Mortgage Loan Seller's right, title and
interest in and to the Loans sold by such Mortgage Loan Seller.
"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;
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(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 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.
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": Each of Credit Suisse First Boston Mortgage
Capital LLC, a Delaware limited liability company and Paine Webber Real Estate
Securities, Inc., a Delaware corporation, and its respective successors in
interest.
"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.
"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.
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"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.
"Multi-Property 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 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.
"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 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 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.
"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 and capital
expenditure reserves, other than (i) non-cash items such as depreciation, (ii)
amortization, (iii) actual capital expenditures and (iv) debt service on the
related Loan.
"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
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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
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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 the Upper-Tier REMIC or Lower-Tier
REMIC 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 Lower-Tier Principal Amount": With respect to any Class of
Uncertificated Lower-Tier Interest, the initial 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, which originated a Loan.
"OTS": The Office of Thrift Supervision or any successor thereto.
"Owner": As defined in Section 3.08(a)(v)(C).
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"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 Pass-Through 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-1, Class V-2 or Residual Certificate, the percentage
interest is set forth on the face thereof.
"Permitted Institutional Transferee": With respect to any Mezzanine
Loan, any proposed transferee thereof that is (i) an affiliate of either
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; or (iii) any entity wholly
owned by any one or more institutions meeting the criteria in clause (ii). The
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
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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 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 "A-1+" by
S&P, "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;
(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 S&P and 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 "A-1+" by S&P,
"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 "AAAm" by S&P, "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
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Agency and (b) which qualifies as a "cash flow investment" pursuant to
Section 860G(a)(6) of the Code;
provided, however, 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) in each case, if the investment is rated by S&P, (i) it
shall not have an "r" highlighter affixed to its rating from S&P, (ii) it shall
have a predetermined fixed dollar of principal due at maturity that cannot vary
or change, (iii) it shall have a maturity less than or equal to one year and
(iv) any such investment that provides for a variable rate of interest must
have an interest rate that is tied to a single interest rate index plus a fixed
spread, if any, and move proportionately with such index; (C) 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 (D) no amount
beneficially owned by either the Upper-Tier REMIC or the Lower-Tier REMIC (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 either the Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC under
the Code or result in imposition of a tax on such Upper-Tier REMIC or
Lower-Tier REMIC. 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 applicable 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 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.
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"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
Prepayments 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 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, the aggregate amount, with respect to all Loans that were subject to
Principal Prepayments 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 Determination Date in the
calendar month preceding such Distribution Date but prior to the Due Date in
the related Due Period, the amount of interest that would have accrued at the
Net Mortgage Pass-Through Rate for such Loans on the amount of such Principal
Prepayments 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 Loans and ending
on (and including) the day immediately preceding such Due Date.
"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, the per annum
rate set forth on the Mortgage Loan Schedule with respect thereto.
"Primary Servicing Fee Reimbursement Rate": With respect to each of
Loan Nos. 18, 26, 28, 43, 99 and 195, 0.05%.
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"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; provided, however, that a payment of
principal that is received in advance of its scheduled Due Date but is
accompanied by a full month's interest pursuant to the terms of the related
Mortgage Loan shall nevertheless be treated as a Principal Prepayment for
purposes of payment allocations hereunder.
"Private Certificate": Any Class F, Class G, Class H, Class I or Class
J Certificate.
"Prospectus": The Prospectus dated June 11, 1998, as supplemented by
the Prospectus Supplement.
"Prospectus Supplement": The Prospectus Supplement dated June 18,
1998, relating to the offering of the Public Certificates.
"Public Certificate": Any Class A-1A, Class A-1B, Class A-2MF, Class
A-X, Class B, Class C, Class D or Class E Certificate.
"Purchase Price": With respect to any Loan to be purchased by the
applicable 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 applicable Mortgage Loan Seller, 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, 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 applicable 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.
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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.
"PWRES Excess Interest": With respect to each of the ARD Loans that is
a PWRES Loan, interest accrued on such Loan and allocable to the PWRES Excess
Rate. The PWRES Excess Interest is an asset of the Trust Fund, but shall not be
an asset of the Lower-Tier REMIC or the Upper-Tier REMIC formed hereunder.
"PWRES 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 "State Street Bank
and Trust Company, as Trustee, in trust for Holders of Credit Suisse First
Boston Mortgage Securities Corp., Commercial Mortgage Pass-Through
Certificates, Series 1998-C1, PWRES Excess Interest Distribution Account" and
which shall be an Eligible Account. The PWRES Excess Interest Distribution
Account shall not be an asset of the Lower-Tier REMIC or the Upper-Tier REMIC
formed hereunder.
"PWRES Excess Rate": With respect to each ARD Loan that is a PWRES
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.
"PWRES Loan": Any Loan transferred to the Depositor by Paine Webber
Real Estate Securities, Inc. pursuant to the related Mortgage Loan Purchase
Agreement.
"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.
"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 May 2040.
"Rating Agency": Each of Fitch, Moody's and S&P 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
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ratings of Fitch, Moody's and S&P 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.
"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.
"Related Certificates" and "Related Uncertificated Lower-Tier
Interest": For the following Classes of Uncertificated Lower-Tier Interests,
the related Class of Certificates set forth below and for the following Classes
of Certificates, the related Class of Uncertificated Lower-Tier Interests set
forth below:
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Related Uncertificated
Related Certificates Lower-Tier Interest
- -------------------- -------------------
Class A-1A Certificate Class LA-1A Uncertificated Interest
Class A-1B Certificate Class LA-1B Uncertificated Interest
Class A-2MF Certificate Class LA-2MF Uncertificated Interest
Class B Certificate Class LB Uncertificated Interest
Class C Certificate Class LC Uncertificated Interest
Class D Certificate Class LD Uncertificated Interest
Class E Certificate Class LE Uncertificated Interest
Class F Certificate Class LF Uncertificated Interest
Class G Certificate Class LG Uncertificated Interest
Class H Certificate Class LH Uncertificated Interest
Class I Certificate Class LI Uncertificated Interest
Class J Certificate Class LJ Uncertificated Interest
"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;
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(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 State Street Bank and Trust
Company, as Trustee, for Holders of Credit Suisse First Boston Mortgage
Securities Corp. Commercial Mortgage Pass-Through Certificates, Series 1998-C1,
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),
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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.
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"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.
"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.
"Ritz-Carlton Loan": As defined in Section 3.33.
"Ritz-Carlton Property": The Mortgaged Property relating to the
Ritz-Carlton Loan.
"Ritz-Carlton Property Trust": The trust created pursuant to a trust
agreement dated May 29, 1998, the sole asset of which is the Ritz-Carlton
Property and a beneficial ownership in which secures the Ritz-Carlton Loan.
"Ritz-Carlton Property Trustee": Banco Nacional de Mexico and its
successors and assigns, as trustee of the Ritz-Carlton Property Trust.
"Ritz-Carlton REMIC Agreement": The trust agreement dated as of
June 11, 1998 pursuant to which the Ritz-Carlton REMIC Asset was issued.
"Ritz-Carlton REMIC Asset": The beneficial ownership interest in a
REMIC, the primary asset of which is the Ritz-Carlton Loan and which is
transferred and assigned to the Trustee pursuant to Section 2.01.
"S&P": Standard and Poor's Ratings Services, a division of The
McGraw-Hill Companies, Inc., and its successors in interest.
"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, National Consumer Cooperative Bank and Sutter Mortgage Corp.
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"Seller-Servicer Agreement": The Sub-Servicing Agreement dated as of
June 11, 1998, by and between the Servicer and each of the Seller-Servicers.
"Servicer": Banc One Mortgage Capital Markets, LLC 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 any Loan that, as of the
Determination Date immediately preceding the preparation of such report, is in
jeopardy of becoming a Specially Serviced Loan.
"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 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
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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 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 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.
"Significant Loan": Any Loan (i) whose principal balance is
$20,000,000 or more or (ii) individually, as part of a group of Crossed Loans
or as a group of Loans made to affiliated
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Borrowers represents 5% or more of the aggregate outstanding principal balances
of all of the Loans.
"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
Florida, New York and Texas and the Commonwealth of Massachusetts, 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.
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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:
(i) 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
(ii) 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.
"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.
"Successor Manager": As defined in Section 3.19(b).
"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 of the Upper-Tier REMIC and the Lower-Tier REMIC
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.
"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.
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"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 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 CSFBMC Excess Interest
Distribution Account, the PWRES 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 Agreements.
"Trustee": State Street Bank and Trust Company, a Massachusetts trust
company, 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 0.00175% 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 Lower-Tier Interests": Any of the Class LA-1, Class
LA-1B, Class LA-2MF, Class LB, Class LC, Class LD, Class LE, Class LF, Class
LG, Class LH, Class LI and Class LJ Uncertificated Interests.
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"Uncovered Prepayment Interest Shortfall Amount": As to any
Distribution Date, the amount by which (i) the sum of the Prepayment Interest
Shortfalls, if any, for such Distribution Date exceeds (ii) the aggregate
reduction in the Servicer's compensation for such Distribution Date pursuant to
the last paragraph of Section 3.11(a).
"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.
"Underwriters": Credit Suisse First Boston Corporation and PaineWebber
Incorporated.
"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.
"Unscheduled Payments of Principal": Any Principal Prepayments, the
principal portion of Liquidation Proceeds, Insurance Proceeds and condemnation
awards, and any other unscheduled recoveries of principal.
"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 "State Street Bank and Trust
Company, as Trustee, in trust for the registered Holders of Credit Suisse First
Boston Mortgage Securities Corp., Commercial Mortgage Pass-Through
Certificates, Series 1998-C1, Upper-Tier Distribution Account." Any such
account or accounts shall be an Eligible Account.
"Upper-Tier REMIC": One of the two separate REMICs comprising the
Trust Fund, the assets of which consist of the Uncertificated Lower-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
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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-1, Class V-2, 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.
"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.
"Yield Protection Payment": As to any Distribution Date identified on
Exhibit L hereto and all Additional Collateral Prepayment Amounts prepaid in
the Due Period preceding such Distribution Date, the sum of (i) two percent of
the sum of such Additional Collateral Prepayment Amounts (such amount, the
"Regular Yield Protection Payment Amount") and (ii) the product of the sum of
such Additional Collateral Prepayment Amounts and the percentage set forth on
Exhibit L hereto with respect to such Distribution Date (such product, the
"Class A-X Yield Protection Payment Amount"). Yield Protection Payments are
assets of the Trust Fund, but shall not be assets of the Lower-Tier REMIC or
the Upper-Tier 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 "State Street Bank and
Trust Company, as Trustee, in trust for Holders of Credit Suisse First Boston
Mortgage Securities Corp., Commercial Mortgage Pass-Through
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Certificates, Series 1998-C1, Yield Protection Payment Account" and which shall
be an Eligible Account. The Yield Protection Payment Account shall not be an
asset of the Lower-Tier REMIC or the Upper-Tier 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
(a) 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).
(b) With respect to any Loan requiring the payment of a Yield
Maintenance Charge in connection with a Principal Prepayment on such Loan, the
Servicer shall, in accordance with the Servicing Standard (to the extent
consistent with the related Loan Documents), calculate such Yield Maintenance
Charge as an amount equal to the greater of (i) the amount, if any, by which
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(A) the present value, as of the related Prepayment Date, of the scheduled
payments of principal and interest remaining on such Loan from such Prepayment
Date through the related Maturity Date (or, if such Loan is an ARD Loan,
through the related Anticipated Repayment Date (including an amount equal to
the outstanding principal balance of such Loan on the earlier of such Maturity
Date or Anticipated Repayment Date, as applicable) exceeds (B) the amount of
such Principal Prepayment and (ii) the Yield Maintenance Charge set forth in
the related Loan Documents. The present value of the scheduled payments of
principal and interest referred to in the preceding sentence shall be
determined by discounting such payments at the Discount Rate.
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 No." in
Annex A to the Prospectus Supplement.
[End of Article I]
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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 and
the Ritz-Carlton REMIC Asset identified on the Mortgage Loan Schedule, (ii) the
Mortgage Loan Purchase Agreements and (iii) 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 Ritz-Carlton
REMIC Asset (other than payments of principal and interest due and payable on
the Loans and the Ritz-Carlton REMIC Asset on or before the Cut-off Date and
Principal Prepayments paid on or before the Cut-off Date). The transfer of the
Loans and the Ritz-Carlton REMIC Asset 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), on or before the Closing Date,
the Mortgage File for each Loan so assigned by such Mortgage Loan Seller and,
in the case of the Ritz-Carlton REMIC Asset, the certificate representing such
Ritz-Carlton REMIC Asset, registered in the name of the Trustee, as such. If
the applicable 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
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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 a 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 a 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 UCC-2 or UCC-3 in
a form that is complete and appropriate for filing.
(c) At the expense of the applicable Mortgage Loan Seller, the Trustee
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 (b) 60 days from
receipt of documents in complete and recordable form) 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
Trustee following filing. If any such document or instrument is lost or
returned unrecorded or unfiled because of a defect therein, the Trustee shall
prepare or cause to be prepared a substitute therefor or cure such defect, as
the case may be, and thereafter the Trustee shall upon receipt thereof cause
the same to be duly recorded or filed, as appropriate. Within 30 days following
request therefor, the Depositor shall reimburse the Trustee for all of its
costs and expenses incurred in performing its obligation under this Section
2.01(c).
(d) All documents and records in the Depositor's or a Mortgage Loan
Seller's possession relating to the Loans and the Ritz-Carlton REMIC Asset
(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.
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(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 each 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, each Mortgage Loan Seller shall cause all funds on deposit in
escrow accounts maintained with respect to the Loans in the name of such
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)-(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 each 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 Mortgage Loan Sellers 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 each 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) - (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 the
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 applicable Mortgage Loan Seller that, as
to each Loan listed on the Mortgage Loan Schedule (other than any Loan as to
which a
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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) - (v), (viii), (ix), (xi), (xii) and
(xiii) 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 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, the 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 applicable 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
applicable 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.
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SECTION 2.03. Representations, Warranties and Covenants of the
Depositor; 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;
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(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 the applicable Mortgage Loan Seller pursuant to, the
related 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 such Mortgage Loan Seller and shall
request that the Mortgage Loan Seller, not later than the earlier of 90 days
from the Mortgage Loan Seller's receipt of such notice or the 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.
(c) 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 applicable Mortgage Loan Seller, upon delivery to each of the
Trustee, the Servicer and the Special Servicer of a trust receipt executed by
such 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 Mortgage Loan
Seller in the same manner as provided in Section 7 of the related Mortgage Loan
Purchase Agreement.
(d) Section 7 of each 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 such Mortgage Loan Purchase Agreement.
(e) If a 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 each Mortgage Loan Seller under Section 7 of the related Mortgage Loan
Purchase Agreement. Such enforcement, including, without limitation, the legal
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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 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 each
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 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, Class V-1 and Class V-2
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, the Regular
Certificates and the Class R Certificates, and the Depositor hereby
acknowledges the receipt by it or its designees, of all such Certificates.
[End of Article II]
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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 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) without regard to the Servicer's or the Special
Servicer's ownership, servicing or management of any other mortgage loans or
mortgaged properties (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 any Loans as to which a
Servicing Transfer Event has occurred and is continuing (each such Loan, a
"Specially Serviced Loan") and any REO Properties. 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. Each Loan that becomes a Specially
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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 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 and/or the Trustee for any related
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Servicing Fees, Primary 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 be allocated to the payment of
Excess Interest until all amounts due, or to become due, under such ARD 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
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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, or the Servicer shall
make a Servicing Advance prior to the applicable penalty or termination date
(which shall be so applied by the Servicer at the written direction of the
Special Servicer in the case of Specially Serviced Loans and REO Loans) as
allowed under the terms of the related Loan. 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 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, (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, so long as
the particular advance would not, if made, constitute a Nonrecoverable
Servicing Advance; provided, however, 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) the date prior to the
date after which any penalty or interest would accrue in respect of such taxes
or assessments.
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.
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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, CSFBMC
Excess Interest Distribution Account, PWRES 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 in respect of principal and
interest on the
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Loans due and payable on or before the Cut-off Date) and payments (other than
Principal Prepayments) received by it on or prior to the Cut-off Date but
allocable to a period subsequent thereto:
(i) all payments on account of principal, including Principal
Prepayments, on the Loans;
(ii) all payments on account of interest on the Loans, net of the
Servicing Fees and Primary Servicing Fees (in each case net of any
amount utilized to offset Prepayment Interest Shortfalls), Penalty
Charges (net of any amount thereof utilized to offset interest on
Advances), Prepayment Premiums and Yield Maintenance Charges;
(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; and
(viii) any Prepayment Interest Excess to which the Servicer is
not entitled as provided in Section 3.11(a).
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.
Upon receipt of any of the foregoing amounts with respect to
any Specially Serviced Loan, the Special Servicer shall remit such amounts to
the Servicer within one (1) Business Day of receipt 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
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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 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 CSFBMC Excess Interest or PWRES Excess Interest is received, the
Trustee shall establish and maintain the CSFBMC Excess Interest Distribution
Account and the PWRES Excess Interest Account, each in the name of the Trustee
in trust for the benefit of the Holders of the Class V-1 and Class V-2
Certificates, respectively. The CSFBMC Excess Interest Distribution Account and
the PWRES Excess Interest Account shall be established and maintained as
Eligible Accounts. On or before each Servicer Remittance Date, the Servicer
shall remit to the Trustee for deposit in the CSFBMC Excess Interest
Distribution Account an amount equal to the CSFBMC Excess Interest received
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during the related Due Period and for deposit in the PWRES Excess Interest
Distribution Account an amount equal to the PWRES Excess Interest received
during the related Due Period. On each Distribution Date, the Trustee shall
withdraw the CSFBMC Excess Interest from the CSFBMC Excess Interest
Distribution Account and the PWRES Excess Interest from the PWRES Excess
Interest Distribution Account for distribution pursuant to Section 4.01(f).
Following the distribution of CSFBMC Excess Interest to Holders of the Class
V-1 Certificates on the first Distribution Date after which no CSFBMC Loans
remain outstanding that pursuant to their terms could pay CSFBMC Excess
Interest, the Trustee shall terminate the CSFBMC Excess Interest Distribution
Account. Following the distribution of PWRES Excess Interest to Holders of the
Class V-2 Certificates on the first Distribution Date after which no PWRES
Loans remain outstanding that pursuant to their terms could pay PWRES Excess
Interest, the Trustee shall terminate the PWRES 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 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, the
Lower-Tier Distribution Account, the CSFBMC Excess Interest Distribution
Account, the PWRES 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, the Lower-Tier Distribution Account,
the CSFBMC Excess Interest Distribution Account, the PWRES Excess Interest
Distribution Account or the Yield Protection Payment Account, prior to any
change thereof.
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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;
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(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 a Mortgage Loan Seller under
Section 7 of the 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 a Mortgage Loan Seller's obligations under Section 7 of the
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 second 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
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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 the
Upper-Tier REMIC, the Lower-Tier REMIC 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 applicable
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
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(v) to clear and terminate the Lower-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 and the
Lower-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 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; provided, however, that any such investment direction by the
Servicer with respect to funds on deposit in the Interest Reserve Account shall
be coordinated with, and subject to the approval of, Credit Suisse First Boston
Corporation. All such Permitted Investments shall be held to maturity, unless
payable on
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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 CSFBMC
Excess Interest Distribution Account, PWRES 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, 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. As compensation for providing rating agency
review services, interest and investment income realized on funds deposited in
the Interest Reserve Account to the extent of the Net Investment Earnings, if
any, for each period from any Distribution Date to the immediately succeeding
P&I Advance Date shall be for the sole and exclusive benefit of Credit Suisse
First Boston Corporation, or of any successor corporation that provides such
services, and shall be subject to its withdrawal, or to withdrawal at its
direction. 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
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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. If any loss shall be incurred in respect of any
Permitted Investment on deposit in the Interest Reserve Account, Credit Suisse
First Boston Corporation 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
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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 and 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, which provides
protection equivalent to the individual policies otherwise required, 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 from its own funds the
amount 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 which is consistent with the
Servicing Standard, but are 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, at its own expense, earthquake insurance on
REO Properties, provided coverage is available at commercially reasonable
rates.
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(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 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 "A" by
S&P, "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
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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
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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
(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 not granting 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 Special Servicer has consented to
such foreclosure and any applicable requirements of clauses (ii) and
(ii) below have been complied with.
(iii) If a Permitted Mezzanine Loan Holder requests the consent
of the Special Servicer to foreclose upon the related Mezzanine Loan
Collateral and S&P continues to provide ratings on any Class of
Certificates at such time, the Special Servicer shall approve or
reject such request in accordance with the Servicing Standard after
consideration of the following factors:
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(A) whether the net operating income for the related
Mortgaged Property or Properties is less than 85% of the 1997
annual net operating income for such property or properties as
reported in the Prospectus Supplement;
(B) the occupancy, effective rent, leasing activity,
maintenance and/or revenues for the related Mortgaged Property or
Properties since the Cut-off Date;
(C) the creditworthiness of the existing owner of the
Mezzanine Loan Collateral (the "Owner") and of the proposed
transferee thereof (the "Mezzanine Loan Collateral Transferee")
and their relative financial strength;
(D) the reputation and character of the Owner and of the
Mezzanine Loan Collateral Transferee thereof;
(E) whether the Mezzanine Loan Collateral Transferee and its
property manager shall have sufficient experience in ownership
and management of properties similar to the related Mortgaged
Property;
(F) whether the Owner has diligently and timely performed
all of its obligations under the related Loan;
(G) the likelihood that, as a result of such action, (1) the
related Mortgagor will be adjudicated a bankrupt or insolvent,
(2) a petition for bankruptcy, reorganization or arrangement
pursuant to federal bankruptcy law, or any similar federal or
state law, will be filed by or against, consented to by, or
acquiesced in by, such Mortgagor, (3) any proceeding for the
dissolution or liquidation of such Mortgagor will be instituted
(any of the events or occurrences in clause (1), (2) or (3), a
"Bankruptcy Event") or (4) if a Bankruptcy Event occurs with
respect to such Mortgagor and the Servicer is required to make
P&I Advances with respect to the related Mortgaged Property for
the period for which such Bankruptcy Event has not been resolved,
each of such P&I Advances will not be a Nonrecoverable P&I
Advance; and
(H) such other factors as are relevant in accordance with
the Servicing Standard.
(iv) The Special Servicer shall not consent to the foreclosure of
any Mezzanine Loan other than to a Permitted Mezzanine Loan Holder and
shall not consent to the transfer of any Mezzanine Loan except to a
Permitted Mezzanine Loan Holder. Neither the consent of the Special
Servicer nor the receipt of a rating confirmation shall be required
for the foreclosure by a Permitted Mezzanine Loan Holder if an
economic 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,
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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 may at the mortgagee's
option) become due and payable upon the creation of any additional
lien or other encumbrance on the related Mortgaged Property; or
(ii) requires the consent of the mortgagee to the creation of any
such additional lien or other encumbrance on the related Mortgaged
Property,
then 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 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 and (y) receives prior written
confirmation from each of Fitch, S&P and Moody's that granting such consent or
not accelerating payments on the related Loan 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
the Servicer shall have determined 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 provided, further, that the Servicer shall
determine that neither REMIC 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 either REMIC as a result thereof.
(f) With respect to any Loan which permits release of Mortgaged
Properties through defeasance:
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(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 of 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 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
either the Upper-Tier REMIC or Lower-Tier
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REMIC to fail to qualify as a REMIC at any time that any Certificates are
outstanding or cause a tax to be imposed on the Trust Fund under the REMIC
Provisions.
(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.
(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.
SECTION 3.09. Realization upon Defaulted Loans
(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
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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 the Lower-Tier REMIC or the Upper-Tier REMIC under the REMIC Provisions
or cause the Lower-Tier REMIC or the Upper-Tier REMIC to fail to qualify as a
REMIC at any time that any Uncertificated Lower-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
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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 applicable 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 until the
earlier to occur of satisfaction of both such conditions, repurchase of the
related Loan by the applicable 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 paragraph
(f) promptly upon the Servicer's
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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 shall execute such instruments of
satisfaction, deed of reconveyance and other document as shall have been
furnished to it by the Servicer and 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,
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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, 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
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) 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
Mortgage Loan Sellers (pro rata, 84.4% to Credit Suisse First Boston Mortgage
Capital LLC and 15.6% to PaineWebber Real Estate Securities Inc.), 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
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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, 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; and (iv) collections representing Prepayment
Interest Excess (other than with respect to any Loan whose terms expressly
permit collections of interest through the following Due Date in connection
with any voluntary Principal Prepayment).
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 Fees on all Loans other than Specially Serviced Loans and
the investment income earned on the aggregate Principal Prepayments made on all
such Loans during a given Due Period and due the Servicer on the related
Distribution Date shall be reduced by the aggregate Prepayment Interest
Shortfalls, if any, on all Loans (other than Specially Serviced Loans) for such
Distribution Date; provided, however, that with respect to any Additional
Collateral Loans as to which Additional Collateral is paid as Principal
Prepayments, neither the Servicing Fee on such Loans, nor the investment income
earned on any such Principal Prepayments, shall be reduced by the aggregate
Prepayment Interest Shortfalls, if any, on all such Loans 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
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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) 50% 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.
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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 applicable
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-1 or Class V-2 Certificates, respectively, 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 September 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
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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: (i) a Comparative Financial Status Report, (ii) a
Delinquent Loan Status Report; (iii) an Historical Loan Modification Report;
(iv) an Historical Loss Estimate Report; (v) an REO Status Report and (vi) a
report of payments after Determination Date reasonably acceptable to the
Trustee and the Servicer. Such reports shall be in writing and on a computer
readable medium 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 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 this Section
3.12(c). 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
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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 all Loans
that the Servicer has determined are in jeopardy of becoming Specially Serviced
Loans. For this purpose, Loans that are in jeopardy of becoming Specially
Serviced Loans shall include, without limitation: (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, (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.
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(f) By 4:00 p.m., New York City time, one 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; (v)
Comparative Financial Status Reports with respect to all Specially Serviced
Loans; and (vi) a Servicer Watch List. 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 a computer
readable format reasonable 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 a computer readable 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
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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 the Upper-Tier
REMIC or Lower-Tier REMIC 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
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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
(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 two years after the Trust Fund acquires ownership
of such REO Property for purposes of Section 860G(a)(8) of the Code, unless the
Special Servicer either (i) 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 to the second anniversary of such acquisition will not result in the
imposition of taxes on "prohibited transactions" of the Trust Fund or the
Lower-Tier REMIC or the Upper-Tier REMIC constituted thereby as defined in
Section 860F of the Code or cause either the Lower-Tier REMIC or the Upper-Tier
REMIC to fail to qualify as a REMIC for federal or applicable state tax
purposes at any time that any Uncertificated Lower-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 two years as is permitted by such REO Extension or such Opinion of
Counsel. Any expense incurred by the Special Servicer in connection with its
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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
(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
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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) - (iv) above with respect to such REO Property, the Servicer shall
advance as a Servicing Advance from its own funds such amount as is necessary
for such purposes unless (as evidenced by an Officer's Certificate delivered to
the Trustee 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
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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
(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
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(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 two-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 two-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 two
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
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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, 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 July 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.
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(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 shall irrevocably 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 any required Appraisal is not received, nor an internal valuation
completed, by such date, or if, with respect to any Loan with a Stated
Principal Balance of $1,000,000 or less, the Special Servicer has elected not
to obtain an Appraisal, 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
completion of such internal valuation, the Special Servicer shall
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calculate and report to the Servicer, and the Servicer shall report to the
Trustee, the Appraisal Reduction taking into account such Appraisal or an
internal valuation. The Servicer may conclusively rely on any report by the
Special Servicer of an Appraisal Reduction.
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 twelve consecutive Monthly Payments (for such purposes
taking into account any amendment or modification of such Loan)), 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, 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 twelve consecutive Monthly Payments (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,
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.
SECTION 3.20. Modifications, Waivers, Amendments and Consents
(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.
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(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) Approving a request by the Holder of a Mezzanine Loan to
foreclose upon the related Mezzanine Loan Collateral (which consent
shall be given or rejected in accordance with the provisions of
clause Section 3.08(a) above);
(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) 20,000 square feet and (b) 20% of the
related Mortgaged Property;
(D) Approving a transfer of equity in a Borrower from one
current equity holder to another provided that such transfer of
equity does not result in a change of control of such Borrower, cause
the transferee to hold more than 49% of the equity in such Borrower
or relate to a Significant Loan;
(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) Approving a change of the property manager at the request of
the related Borrower provided that the successor property manager is
not affiliated with the Borrower and is a nationally or regionally
recognized manager of similar properties; and
(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
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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).
(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 3.08(f)(i), 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
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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 forseeable)
constitute a "significant modification" under Treasury Regulation Section
1.860G-2(b) or (B) cause either REMIC 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 the Special
Servicer has obtained an Appraisal of the related Mortgaged Property in
connection with such extension, which Appraisal supports the determination of
the Special Servicer contemplated by clause (i)(B) of the immediately preceding
paragraph.
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) 7.422% per annum and (y) the then prevailing
interest rate for comparable loans, as determined by the Special Servicer by
reference
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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 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 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
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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 five (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 each of the Underwriters,
the Initial Purchasers and to each Holder of a Controlling Class Certificate 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 current and has remained current for three consecutive
Monthly Payments (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
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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 (10) 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 ten (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)
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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 such
affirmative disapproval by the Directing Certificateholder 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, 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 of the Lower-Tier REMIC and the
Upper-Tier REMIC, 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, any Mortgage Loan Seller, 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 five
(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,
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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 Agreements, 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, provides that upon termination of the
Trust Fund, the owner of the Loans shall, with respect to those Loans serviced
by each Seller-Servicer, enter into a servicing agreement with such
Seller-Servicer, in the form of the related "Prior Servicing Agreement" (as
defined in the Seller-Servicer Agreement) or shall pay such Seller-Servicer 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, 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
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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, shall permit each to retain its
fees from amounts collected by such Seller-Servicers. 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.
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(g) Except with respect to the Seller-Servicer 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 (5) 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 and Warranties 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 limited liability company duly organized,
validly existing and in good standing under the laws of the State of
Delaware, 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
organizational documents 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
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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 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, which 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.
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SECTION 3.24. Representations and Warranties 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
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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 representations and warranties set forth in paragraph (a)
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.
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Such indemnification shall survive any termination or resignation of the
Special Servicer, and any termination of the Agreement.
SECTION 3.25. RESERVED
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 the expense of the Servicer 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 Distribution
Date Statement 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
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after the first calendar year. 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
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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 (as identified by the related Depository Participant and for so
long as such Classes remain 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
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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,
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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 all ARD Loans, 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. The foregoing shall not limit the Servicer and Special Servicer's
obligation 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 Special 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
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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) With respect to each Borrower that has been established as a
"bankruptcy-remote entity," the Servicer shall not consent to (y) the amendment
by such Borrower of its organizational documents or (z) 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.
(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 records of the
related Borrower (including minute books) 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.
(h) With respect to Loan No 8, the Servicer and the Special Servicer
shall not take any enforcement action with respect to the payment of any
Paragraph 3 Yield Protection Payment (as defined in the related Note).
(i) The 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, 26, 28, 43, 99
and 195, 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 "servicing fee."
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SECTION 3.32. REMIC Administration
(a) The Trustee shall make an election to treat each of the Lower-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 either of the Lower-Tier REMIC or the
Upper-Tier REMIC other than the Uncertificated Lower-Tier Interests (excluding
the Class LR Certificates) and the Certificates (other than the Class V-1 and
Class V-2 Certificates).
(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. 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 either 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
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Special Servicer or the Trustee shall knowingly or intentionally take any
action, cause either of the Lower-Tier REMIC or the Upper-Tier REMIC 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 the Lower-Tier REMIC or the Upper-Tier REMIC to fail to qualify
as a REMIC or (ii) result in the imposition of a tax under the REMIC Provisions
upon either the Lower-Tier REMIC or the Upper-Tier REMIC (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 either 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 only be taken pursuant to an Opinion of Counsel that
such action would impose a tax on the Trust Fund, such action may nonetheless
be taken provided that the indemnity given in the preceding sentence with
respect to any taxes that might be imposed on the Trust Fund has been given and
that 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 either REMIC, and such party shall not take any such action, or
cause either 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
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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.
(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 either REMIC 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 either REMIC will not cause either REMIC to fail to qualify
as REMICs at any time that any Certificates are outstanding or subject either
REMIC 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 either REMIC will receive a fee or other
compensation for services nor, to the extent reasonably within their control,
permit either 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 Class of Certificates representing a regular interest in the
Upper-Tier REMIC and each Lower-Tier Regular Interest 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 both the Lower-Tier REMIC
and the Upper-Tier REMIC.
(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 either REMIC, (iii) the
termination of either REMIC 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 either REMIC, nor sell or dispose of any investments in
the Certificate Account for gain, nor accept any contributions to either REMIC
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 either REMIC 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
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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 the
Upper-Tier REMIC or the Lower-Tier REMIC pursuant to this Agreement.
SECTION 3.33. The Ritz-Carlton Loan
(a) Notwithstanding anything herein to the contrary, in accordance
with Section 6 of the Ritz-Carlton Property Trust Agreement, the Special
Servicer on behalf of the Trust shall not take any action to enforce its
remedies with respect to the Ritz-Carlton Property for a period of 90 days (180
days upon the occurrence of certain events set forth therein) after an event of
default under Loan No. 3 (the "Ritz-Carlton Loan").
(b) Upon an event of default under the Ritz-Carlton Loan, the Special
Servicer shall, in accordance with the Servicing Standard and the applicable
provisions of Sections 3.09 and 3.21, determine whether it is in the best
interests of Certificateholders to (i) exercise the right of the Trustee to
direct the Ritz-Carlton Property Trustee to direct the sale of the Ritz-Carlton
Property, (ii) extinguish the interest of the related Borrower in the
Ritz-Carlton Property Trust and thereby obtain ownership of the Ritz-Carlton
Property through the Property Trust or (iii) take title to the Ritz-Carlton
Property directly. If the Special Servicer determines, subject to the
requirements of Section 3.21, that it is in the best interests of
Certificateholders to take title to the Ritz-Carlton property directly rather
than to own it through the Ritz-Carlton
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Property Trust, the Trustee shall establish an appropriate Mexican entity to
take title to the Ritz-Carlton Property in accordance with applicable Mexican
law. All costs and expenses, including legal fees, in connection with
establishing such a Mexican entity shall be Trust Fund expenses.
(c) Subject to the terms of this Agreement, each of the Servicer and
the Special Servicer, as applicable, on behalf of the Trust Fund, is authorized
to take any and all actions required or permitted to be taken by a "Holder" (as
such terms are defined in the Ritz-Carlton Property Trust Agreement) under the
Ritz-Carlton Loan and the Ritz-Carlton Property Trust Agreement; provided,
however, that when the consent of a "Holder" is required under the related
Ritz-Carlton Loan documents in connection with the transfer of ownership
interests in the Mortgagor under the Ritz-Carlton Loan, prior to consenting to
any such transfer, the Servicer or the Special Servicer, as applicable, shall
have received written confirmation by each Rating Agency that such transfer
would not, in and of itself, result in a downgrade, qualification or withdrawal
of any of the then current ratings assigned to the Certificates.
[End of Article III]
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ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS
SECTION 4.01. Distributions
(a) On each Distribution Date prior to the date on which the principal
balances of the Subordinate Certificates have 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 Upper-Tier Distribution Account in the amounts and priorities set forth in
Section 4.01(b) with respect to each Class of Uncertificated Lower-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-1A and Class A-1B Certificates pro rata, 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-2MF 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-2MF 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-2MF Principal Distribution
Amount for such Distribution Date;
(iii) to the Class A-1A, Class A-1B and Class A-2MF 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-1A Certificates, until the Certificate Balance
thereof has been reduced to zero;
second, to the Class A-1B Certificates until the Certificate Balance
thereof has been reduced to zero; and
third, to the Class A-2MF Certificates, until the Certificate Balance
thereof has been reduced to zero;
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(iv) to the Class A-1A, Class A-1B and Class A-2MF 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;
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(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;
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(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 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 Lower-Tier Interest's respective Class of
Related Certificates as provided in Sections 4.01(a) and (c). During each
Interest Accrual Period, each Uncertificated Lower-Tier Interest shall accrue
interest in an amount equal to the principal balance of each such
Uncertificated Lower-Tier Interest multiplied by the Weighted Average Net
Mortgage Rate. On each Distribution Date, each Uncertificated Lower-Tier
Interest shall receive distributions in respect of interest in an amount equal
to the sum of (i) the amount of interest that actually will be distributed in
respect of such Uncertificated Lower-Tier Interest's Related Certificate and
(ii) the amount of interest that actually will be distributed in respect of
such Uncertificated Lower-Tier Interest's corresponding Class A-X Component. In
all events, the amount accrued in respect of each Uncertificated Lower-Tier
Interest less the amount actually distributed in respect of such Uncertificated
Lower-Tier Interest shall equal the sum of (i) the Interest Shortfall Amount
allocated to such Uncertificated Lower-Tier Interest's Related Certificates,
(ii) the Interest Shortfall Amount allocated to the Class A-X Certificates and
attributable to such Uncertificated Lower-Tier Interest and (iii) any
Certificate Deferred Interest allocated to such Uncertificated Lower-Tier
Interest. 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, interest and
reduction of Collateral Support Deficit with respect to any Distribution Date
are referred to herein collectively as the "Lower-Tier Distribution Amount" and
shall be made by the Trustee by depositing such Lower-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 Lower-Tier
Interests such that the sum of the principal balance after application of any
Collateral Support Deficit of each Uncertificated Lower-Tier Interest and the
cumulative amount of Collateral Support Deficit allocated to such Class of
Uncertificated Lower-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 Lower-Tier Interest equals the respective
Original Lower-Tier Principal Amount. The interest rate with respect to each
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Uncertificated Lower-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 Lower-Tier
Interest outstanding to the extent of its Class A-X Component and then, to the
next most senior Uncertificated Lower-Tier Interest to the extent of its Class
A-X 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 Lower-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
Lower-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
Lower-Tier Distribution Account on each Distribution Date after distribution of
the Lower-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 Lower-Tier Distribution
Account, if any). Prepayment Interest Shortfalls shall be allocated to each
class of Uncertificated Lower-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 principal balances of the Subordinate
Certificates have 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-1A, Class A-1B, Class A-2MF and
Class A-X Certificates, pro rata, in respect of the Optimal Interest Amount
allocable to each such Class; (ii) to the Class A-1A, Class A-1B and Class
A-2MF 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-1A, Class A-1B and Class A-2MF 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 all Uncertificated Lower-Tier Interests other than
the Class LA-2MF Uncertificated Lower-Tier Interest, pro rata in proportion to
their outstanding principal balances. 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 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
LA-2MF Uncertificated Lower-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
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Maintenance Charges actually collected on Loans or REO Loans during the related
Due Period and remitted in respect of the Uncertificated Lower-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-1A, Class A-1B, 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-1A, Class A-1B, 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-2MF 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-1A, Class A-1B, 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-1A, Class A-1B, 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-2MF 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
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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-1A,
Class A-1B, Class A-2MF, 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 Lower-Tier Interests pursuant to Section 4.01(d).
(f) On any applicable Distribution Date, any CSFBMC Excess Interest
for such Distribution Date shall be distributed from the CSFBMC Excess Interest
Distribution Account to the Class V-1 Certificates, and any PWRES Excess
Interest for such Distribution Date shall be distributed from the PWRES Excess
Interest Distribution Account to the Class V-2 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 (5) 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
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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.
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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 Lower-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 Underwriters, 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 "Distribution Date Statement") setting forth
the following information:
(i) 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;
(ii) 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;
(iii) separately stated, the aggregate amounts of Uncovered
Prepayment Interest Shortfalls, Certificate Deferred Interest and
indemnification expenses of the Trust Fund allocable to the Holders of
each Class of Certificates on such Distribution Date;
(iv) 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
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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;
(v) the Pass-Through Rate for each Class of Certificates applicable
to such Distribution Date;
(vi) the number of outstanding Loans and the aggregate unpaid
principal balance of the Loans at the close of business on the related
Distribution Date;
(vii) 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;
(viii) 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;
(ix) as to any Loan repurchased by a 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;
(x) 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;
(xi) 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;
(xii) 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;
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(xiii) 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;
(xiv) 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;
(xv) 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;
(xvi) the Collateral Support Deficit, if any for such Distribution
Date;
(xvii) the Pass-Through Rate for each Class of Certificates
applicable for such Distribution Date; and
(xviii) 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 Underwriters, each
Rating Agency, Bloomberg, L.P., the Trepp Group, Charter Research Corporation
and Intex Solutions, Inc., a report containing information regarding the Loans
as of
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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), which report shall contain substantially the categories of
information regarding the Loans set forth in the Prospectus Supplement under
the caption "Description of the 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), which 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.
(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 Underwriters 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. 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 Underwriters and each Rating Agency promptly after its receipt
thereof. Upon written request therefor, the Trustee shall make such reports
available to the Certificateholders and the Special Servicer.
(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 Distribution Date
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Statements 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 hereunder provided to a
requesting Certificateholder as provided in 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.
Beneficial owners also can receive copies of information made
available on the monthly Reports to Certificateholders via State Street's
Corporate Trust home page on the world wide web and/or via facsimile through
State Street's Street Fax system. To visit the web page, interested parties
need to access "corporatetrust.statestreet.com" using any java-enabled web
browser. Then click on the "Investor Information & Reporting" button, and
select the appropriate transaction. Interested parties can register for Street
Fax by calling (617) 664-5600 and requesting an account application through the
system.
For those who have obtained an account number and PIN on the Trustee's
Street Fax system, the foregoing report may be obtained from the Trustee via
automated facsimile by calling (617) 664-5600 and requesting the report code
associated with Credit Suisse First Boston Mortgage Securities Corp. Commercial
Mortgage Pass-Through Certificates, Series 1998-C1. Report codes can be
obtained by calling the same telephone number and requesting a report listing.
In addition, if the Depositor so directs the Trustee and on terms acceptable to
the Trustee, the Trustee will make certain information related to the Loans
available through its Corporate Trust web site and through its Trade Winds
electronic bulletin board. To register for the Trade Winds electronic bulletin
board, Certificateholders should call the Trustee at (617) 664-5443.
Subject to any confidentiality provisions contained in any Loan
Documents or any applicable law, 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
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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 shall be providing 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.
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(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, net of
related Primary Servicing Fees and Servicing 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) and (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.
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.
Notwithstanding the foregoing, with respect to each of Loan Nos. 187, 223, 235,
305 and 310, the Servicer shall make P&I Advances with respect to all Monthly
Payments that were due during any Due Period but not yet delinquent because the
applicable grace period for such Loan was still in effect, without entitlement
to interest thereon at the Reimbursement Rate during such grace period.
(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) Subject to the second following sentence, 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. 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 has
been reduced 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
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Servicer pursuant to Section 3.20, or if the final maturity on any Loan shall
be 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 any P&I Advance (or portion thereof) in
respect of a payment by the Lease Enhancement Policy Insurer (or portion
thereof), taking into account the Lease Enhancement Policy Exposure, with
respect to such Loan 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
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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 Additional
Collateral Prepayment Amounts are paid pursuant to the terms of one or more
Additional Collateral Loans, the Servicer shall make an advance to the Yield
Protection Payment Account on the related Servicer Remittance Date in an amount
equal to the Yield Protection Payment, 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, Credit Suisse First Boston Mortgage Capital LLC's
agreement to reimburse the Servicer therefor pursuant to the applicable
Mortgage Loan Purchase agreement between the Servicer and Credit Suisse First
Boston Mortgage Capital LLC. 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
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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-1A, Class A-1B and Class
A-2MF 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 Lower-Tier Principal Amounts
of the Related Uncertificated Lower-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 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
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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-1A, Class A-1B, Class A-2MF, 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 Lower-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
Lower-Tier Principal Amount of the Uncertificated Lower-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
CSFBMC Excess Interest, PWRES Excess Interest, the CSFBMC Excess Interest
Distribution Account, and the PWRES 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 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-1 and Class V-2
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
applicable share of CSFBMC Excess Interest and PWRES Excess Interest in the
case of the Class V-1 and Class V-2 Certificates, respectively, 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.
SECTION 4.08. Fixed Rate Reserve Account
(a) On the Closing Date, the Servicer shall establish and maintain the
Fixed Rate Reserve Account in the name of the Trustee in trust for the benefit
of the Holders of the Certificates. The Fixed Rate Reserve Account shall be
established and maintained as an Eligible Account. On the Closing Date, there
shall be deposited in the Fixed Rate Reserve Account an amount equal to
$28,362. The Fixed Rate Reserve Account shall not be an asset of the Lower-
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Tier REMIC or the Upper-Tier REMIC formed hereunder. If on any Distribution
Date on which any of the Class A-1A, Class A-1B, Class A-2MF, Class B, Class C
or Class D Certificates remain outstanding, (i) the Available Distribution
Amount is insufficient to pay the Optimal Interest Distribution Amount payable
to any such Class in accordance with the priorities set forth in Section 4.01
and (ii) the Weighted Average Net Mortgage Rate with respect to such
Distribution Date is less than the Pass-Through Rate applicable to any such
Class as a result of defaults or delinquencies on the Mortgage Loans, the
Servicer shall withdraw from the Fixed Rate Reserve Account for distribution to
the Holders of such Classes of Certificates pursuant to Section 4.01 an amount
equal to the amount of such insufficiency and shall apply such amount to the
payment of the Optimal Interest Distribution Amount to each such Class in the
order set forth in Section 4.01(a). On the first Distribution Date after which
no Certificates of any such Class remain outstanding, any amounts remaining in
the Fixed Rate Interest Reserve Account shall be distributed to the Holders of
the Class V-1 and Class V-2 Certificates (such distribution to be allocated
84.4% to the Class V-1 Certificates and 15.6% to the Class V-2 Certificates)
and upon such distribution, the Trustee shall terminate the Fixed Rate Reserve
Account.
(b) Funds on deposit in the Fixed Rate Reserve Account may be invested
only in Permitted Investments maturing on the Business Day preceding the next
succeeding Distribution Date. Interest and investment income earned on amounts
held in the Fixed Rate Reserve Account shall not be available for distribution
pursuant to subsection (a) of this Section 4.08, but shall be retained therein
and paid upon termination of the Fixed Rate Reserve Account to the Holders of
the Class V-1 and Class V-2 Certificates in the proportion set forth in
subsection (a) of this Section 4.08.
[End of Article IV]
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ARTICLE V
THE CERTIFICATES
SECTION 5.01. The Certificates
(a) The Certificates shall be substantially in the respective forms
annexed hereto as Exhibits A-1 through and including A-17. 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 (except, initially, the Class H, Class I and Class J Certificates)
initially shall be held and transferred through the book-entry facilities of
the Depository. The Class R and Class LR Certificates each shall be issuable in
one or more registered, definitive physical certificates (each, a "Definitive
Certificate"). The Class H, Class I and Class J Certificates shall be issued 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-1, Class V-2 and Class R Certificates will be issuable
only in one or more Definitive Certificates in denominations representing
Percentage Interests of not less than 15%. The Class LR Certificates will be
issuable in one or more Definitive Certificates in denominations representing
minimum Percentage Interests of 15%.
With respect to any Certificate or any beneficial interest in a
Certificate, the "Denomination" thereof shall be (i) the amount (a) set forth
on the face thereof or, (b) set forth on a schedule attached thereto or (c) 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, (ii) expressed in terms of initial Certificate
Balance or initial Notional Balance, as applicable, and (iii) be 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.
No Certificate Owner of a Book-Entry Certificate of any Class thereof
shall be entitled to receive a Definitive Certificate representing its interest
in such Class, except as provided in
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Section 5.03. Unless and until Definitive Certificates are issued in respect of
a Class of Book-Entry Certificates, beneficial ownership interests in such
Class of Certificates 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 shall refer to action 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 shall refer 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.
(b) 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.
State Street Bank and Trust Company 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.
(c) 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.
State Street Bank and Trust Company 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
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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 State Street Bank and Trust Company resigns as Certificate
Registrar, the 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 Two International Place, 4th Floor,
Boston, Massachusetts 02110, Attention: Bond Operations, 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, one or
more new Certificates in Denominations of a like aggregate Denomination as the
Definitive Certificate being surrendered. Such Certificates shall be delivered
by the Certificate Registrar in accordance with Section 5.02(e). Each
Certificate surrendered for registration of transfer shall be canceled, and the
Certificate Registrar shall hold such canceled Certificates 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) the Certificate Registrar shall require
that the transferee deliver to the Certificate Registrar an investment
representation letter (the "Investment Representation Letter"), substantially
in the form of Exhibit C attached hereto, which Investment Representation
Letter 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"), and the Certificate Registrar may also
require that the transferee deliver to the Certificate Registrar an Opinion of
Counsel if such transferee is not a Qualified Institutional Buyer or (ii) if
the certifications 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
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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 an 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
Distribution Date Statements, 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 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 in a Book-Entry Certificate representing an
interest in a Non-Registered 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.
Unless the Non-Registered Certificates have been registered under the
Securities Act, each of the Non-Registered Certificates 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.
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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, 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.
(c) 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
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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(c)(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).
(d) (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
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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
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Certificate. None of the Trustee, the Servicer, the Authenticating Agent 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.
(e) 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 (5) Business Days of such request if made at such
Registrar Office, or within ten (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.
(f) If a Responsible Officer of the Certificate Registrar becomes
aware that a Definitive Certificate (other than a Definitive Certificate issued
in exchange for a Certificate representing an interest in the Class A-1A, Class
A-1B, Class A-2MF or Class A-X Certificates) or a beneficial interest in a
Book-Entry Certificate representing a Non-Registered Certificate is being held
by or for the benefit of a Person who is not an Eligible Investor, or that such
holding is unlawful under the laws of a relevant jurisdiction, then the
Certificate Registrar shall have the right, but not the obligation, to void
such transfer, if permitted under applicable law, or to require the investor to
sell such Definitive Certificate or beneficial interest in such Book-Entry
Certificate to an Eligible 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.
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(g) The Certificate Registrar shall provide notice to the Trustee, the
Servicer, the Special Servicer and the Depositor of the transfer of any Class
H, Class I or Class J Certificate for so long as any such Certificate is a
Definitive Certificate. The Certificate Owner of a Class H, Class I or Class J
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 Class H, Class I
or Class J 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.
(h) No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in this Section 5.02. 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.
(i) 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, initially, 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, except as provided in
subsection (c) 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 only transfer the Ownership Interests in the
Book-Entry Certificates of Certificate Owners it represents or of brokerage
firms for which it acts as agent 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
Depositors.
(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
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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) If (i)(A) 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 (B) the Depositor is unable to locate a qualified successor,
or (ii) 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 (iii) 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.
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 (5) Business
Days of such request if made at the Registrar Office, or within ten (10)
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.
(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
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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 interest and (iv) if the affected
Certificate is a Non-Registered Certificate an Investment Representation Letter
from the transferee to the effect that such transferee is a Qualified
Institutional Buyer, 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
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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]
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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
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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
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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.
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]
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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 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, 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
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(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 written notice from any of the
Rating Agencies that the continuation of the Servicer or Special Servicer,
as the case may be, has resulted, or would result, in and of itself, in a
downgrading, qualification or withdrawal of the then-current rating on any
Class of Certificates that are rated by a Rating Agency if the Servicer or
Special Servicer, as the case may be, is not replaced.
(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, less any
expenses associated with such termination.
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
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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 (5) 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 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).
(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 ten (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
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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
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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
(a) 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 10:00 a.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
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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]
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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
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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
rerecording, refiling 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) Within 90 days after the Closing Date, the Trustee, with the
cooperation of the Depositor and its agents, shall advise in writing all
related Borrowers in respect of ARD Loans that the Trust Fund waives any and
all rights to receive Excess Interest at an Excess Rate exceeding 200 basis
points (and all interest on such Excess Interest). The Trustee may not waive
any right to receive Excess Interest in respect of any ARD Loan if the related
Borrower has not been so advised within the first 90 days after the Closing
Date unless the Trustee is provided with an Opinion of Counsel to the effect
that such waiver would not constitute a "significant modification" under the
REMIC Provisions or cause any of the grantor trusts created hereunder to be
other than a grantor trust for federal income tax purposes. Each such Borrower
shall be an intended third-party beneficiary of the provisions of this
paragraph.
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
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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
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(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.
(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
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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 1.860G-1(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
and that has a short-term rating of "A-1" by S&P (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 the Upper-Tier REMIC and the Lower-Tier REMIC 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 the Upper-Tier REMIC and the
Lower-Tier REMIC 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
0Servicer, the Special Servicer and
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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.
(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
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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
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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
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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
at 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
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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 and Warranties 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 trust company, duly organized, validly existing
and in good standing under the laws of the Commonwealth of Massachusetts;
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(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.
[End of Article VIII]
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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 earlier
to occur of (i) the purchase by the Mortgage Loan Sellers, 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 clause (a)(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) and (ii) 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.
Credit Suisse First Boston Mortgage Capital LLC 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 Credit Suisse First Boston Mortgage Capital LLC does not exercise
such option within 60 days after it becomes exercisable by Credit Suisse First
Boston Mortgage Capital LLC, Paine Webber Real Estate Securities, Inc. may
notify Credit Suisse First Boston Mortgage Capital LLC and the Trustee of its
intention to exercise such option and , if Credit Suisse First Boston Mortgage
Capital LLC does not exercise such option within ten Business Days thereafter,
Paine Webber Real Estate Securities Inc. shall be entitled to exercise such
option. If Paine Webber Real Estate Securities Inc. does not exercise such
option within 60 days after it becomes exercisable by Paine Webber Real Estate
Securities Inc., the Holders of a majority of the Percentage Interests in the
Controlling Class may notify the Mortgage Loan Sellers and the Trustee of their
intention to exercise such option and if neither of the Mortgage Loan Sellers
exercises such option within 10
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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 Mortgage Loan Sellers and the Holders of the Controlling Class of its
intention to exercise such option, and if neither the Mortgage Loan Sellers nor
the Holders of a majority of the Percentage Interests in the Controlling Class
exercises such option within 10 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 shall be required to enter into a
servicing agreement with such Seller-Servicer in the form of the related "Prior
Servicing Agreement" (as defined in the Seller-Servicer Agreement) or shall be
required to pay such Seller-Servicer the termination fee that would be payable
thereunder.
If either Mortgage Loan Seller, 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, such Mortgage Loan
Seller, 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 such Mortgage Loan Seller, the Servicer or the Holders of the
Controlling Class, as applicable, the Mortgage Files for the remaining Loans
and shall execute all assignments, endorsements and other instruments furnished
to it by such Mortgage Loan Seller, the Servicer or the Holders of the
Controlling Class, 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 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
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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 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 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-1 Certificates shall receive that portion of the
proceeds of a sale of the assets of the Trust Fund allocable to accrued and
unpaid CSFBMC Excess Interest, and the Holders of the Class V-2 Certificates
shall receive that portion of the proceeds of a sale of the assets of the Trust
Funds allocable to accrued and unpaid PWRES Excess Interest.
SECTION 9.02. Additional Termination Requirements
If either Mortgage Loan Seller, the Holders of the Controlling Class
or the Servicer purchase 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 and the Lower-Tier REMIC's final Tax Return pursuant to Treasury
regulation Section 1.860F-1 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 applicable Mortgage Loan
Seller, 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 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
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(in the case of the 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), and the Trust Fund and each of the Lower-Tier REMIC and
the Upper-Tier REMIC shall terminate at that time.
SECTION 9.03. Purchase of ARD Loans
The Holder of a 100% Percentage Interest in the Class V-1 Certificates
may purchase any CSFBMC Loan that is an ARD Loan for up to two months after its
Anticipated Repayment Date and the Holder of a 100% Percentage Interest in the
Class V-2 Certificates may purchase any PWRES Loan that is an ARD Loan for up
to two months after its Anticipated Repayment Date, in each case at a price
equal to the sum of the following:
(i) 100% of the outstanding principal balance of such ARD Loan on
such Anticipated Repayment Date (less any P&I Advances previously made on
account of principal);
(ii) all unpaid interest accrued on such principal balance of such
ARD Loan at the Mortgage Rate thereof, to the last day of the Interest
Accrual Period preceding such Anticipated Repayment Date (less any P&I
Advances previously made on account of interest);
(iii) the aggregate amount of all unreimbursed Advances with respect
to such ARD 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) either REMIC 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-1 Certificateholders and Class V-2
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 either REMIC 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 either
REMIC.
The proceeds of any such purchase hereunder shall be deposited in the
Certificate Account and disbursed as provided herein.
[End of Article IX]
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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 either the
Lower-Tier REMIC or the Upper-Tier REMIC as a REMIC at all times that any
Certificate (other than the Class V-1 or Class V-2 Certificate) is
outstanding or to avoid or minimize the risk of the imposition of any tax
on the Trust Fund or either the Lower-Tier REMIC or the Upper-Tier REMIC
pursuant to the Code that would be a claim against the Trust Fund or
either the Lower-Tier REMIC or the Upper-Tier REMIC, 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 of
Counsel addressed to the Trustee, cause the Trust Fund, the Lower-Tier
REMIC, the Upper-Tier REMIC 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;
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(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, the Lower-Tier REMIC or the Upper-Tier
REMIC or cause the Lower-Tier REMIC or the Upper-Tier REMIC 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.
185
<PAGE>
(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.
(c) Massachusetts Filings. The Trustee shall make any filings required
under Massachusetts General laws, Chapter 182, Sections 2 and 12, the costs of
which,, if any, shall not be expenses of the Trust Fund.
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
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<PAGE>
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 0incurred 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) 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; (ii) in
the case of the Servicer, Banc One Mortgage Capital Markets, LLC, 1717 Main
Street, 14th Floor Dallas, Texas 75201, Attention Edgar L. Smith, II, telecopy
number (214) 290-4480, with copies to Banc One Mortgage Capital Markets, LLC,
1717 Main Street, 12th Floor, Dallas, Texas 753201, Attention: Grace Holst,
telecopy number (214) 290-3142, and Banc One Mortgage Capital Markets, LLC,
187
<PAGE>
1717 Main Street, 12th Floor, Dallas, Texas, 75201, Attention: John Lloyd,
telecopy number (214) 290-2664; (iii) in the case of the Special Servicer,
Lennar Partners, Inc., 760 Northwest 107th Avenue, Suite 300, Miami, Florida
33172; (iv) in the case of the Trustee, State Street Bank and Trust Company,
Corporate Trust Department - 5th Floor, Two International Place, Boston,
Massachusetts 02110, Attention: Credit Suisse First Boston Mortgage Securities
Corp., Series 1998-1, telecopy number (617) 664-5167; (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; (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 (c) Standard & Poor's, 26 Broadway, New
York, New York 10004, Attention: Surveillance Manager, telecopy number (212)
412-0539; and (vi) in the case of the Mortgage Loan Sellers, (a) Credit Suisse
First Boston Mortgage Capital L.L.C., Eleven Madison Avenue, New York, New York
10010, Attention: Compliance Department, telecopy number (212) 325-8162, (b)
Paine Webber Real Estate Securities, Inc., 1285 Avenue of the Americas, New
York, New York 10019, 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
188
<PAGE>
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 applicable 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;
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<PAGE>
(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 Distribution Date Statement.
(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]
190
<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
BANC ONE MORTGAGE CAPITAL
MARKETS, LLC
Servicer
By: /s/ Edgar L. Smith II
-------------------------
Name: Edgar L. Smith II
Title: Chief Operating Officer
LENNAR PARTNERS, INC.
Special Servicer
By: /s/ Shelly Rubin
--------------------
Name: Shelly Rubin
Title: Vice President
STATE STREET BANK AND TRUST COMPANY
Trustee
By: /s/ William G. Swan
-----------------------
Name: William G. Swan
Title: Vice President
191
<PAGE>
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the 25th day of June, 1998, before me, a notary public in
and for said State, personally appeared Allan J. Baum known to me to be a Vice
President of CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP., a
corporation duly organized, validly existing and in good standing under the
State of Delaware that executed the within instrument, and also known to me to
be the person who executed it on behalf of such 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/ Maija Braunfelds
--------------------
Notary Public
[Notarial Seal]
<PAGE>
STATE OF TEXAS )
) ss.:
COUNTY OF DALLAS )
On the 23rd day of June, 1998, before me, a notary public in
and for said State, personally appeared Edgar L. Smith II known to me to be a
Chief Operating Officer of BANC ONE MORTGAGE CAPITAL MARKETS, LLC, a limited
liability company duly organized, validly existing and in good standing under
the State of Delaware that executed the within instrument, and also known to me
to be the person who executed it on behalf of such limited liability company,
and acknowledged to me that such limited liability company 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/ Cathy A. Ross
-------------------
Notary Public
[Notarial Seal]
<PAGE>
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the 25th day of June, 1998 before me, a notary public in
and for said State, personally appeared William G. Swan known to me to be a
Vice President of STATE STREET BANK AND TRUST COMPANY, a Massachusetts trust
company duly organized, validly existing and in good standing under the
Commonwealth of Massachusetts that executed the within instrument, and also
known to me to be the person who executed it on behalf of such trust company,
and acknowledged to me that such trust company 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/ Angela Forbes
-----------------
Notary Public
[Notarial Seal]
<PAGE>
STATE OF FLORIDA )
) ss.:
COUNTY OF DADE )
On the 23rd day of June, 1998 before me, a notary public in
and for said State, personally appeared Shelly Rubin known to me to be an Vice
President of LENNAR PARTNERS, INC., a corporation duly organized, validly
existing and in good standing under the State of Florida that executed the
within instrument, and also known to me to be the person who executed it on
behalf of such 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/ Shiona Creary
-------------------
Notary Public
[Notarial Seal]
<PAGE>
EXHIBIT A-1
FORM OF CLASS A-1A CERTIFICATE
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 1998-C1
6.260% Class A-1A Certificate
(Fixed Rate)
<TABLE>
<CAPTION>
<S> <C>
No. A-1A-[] Initial Class A-1A Certificate Balance:
CUSIP No. 22540A FR 4 $431,400,000.00
Rated Final Distribution Date: May 2040 Denomination of this Certificate:
$[ ]
</TABLE>
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
June 11, 1998, (the "Pooling and Servicing Agreement") by and among Banc One
Mortgage Capital Markets, LLC, as Servicer (the "Servicer"), Lennar Partners,
Inc., as Special Servicer ("Special Servicer"), State Street Bank and Trust
Company, as Trustee (the "Trustee"), and Credit Suisse First Boston Mortgage
Securities Corp., as Depositor (the "Depositor"). All capitalized terms herein
used and not otherwise herein defined 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 calendar month immediately preceding the calendar 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.
<PAGE>
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 Two International Place -4th Floor,
Boston, MA 02110, Attention: Bond Operations - Corporate Trust Department, ref:
CSFBMSC Series 1998-C1.
2
<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.
STATE STREET BANK AND TRUST COMPANY
not in its individual capacity,
but solely as Trustee
By___________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class A-1A Certificates referred to in the
within mentioned Pooling and Servicing Agreement.
STATE STREET BANK AND TRUST COMPANY
not in its individual capacity,
but solely as Trustee
By___________________________________
Authorized Officer
Dated: June 25, 1998
<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-C1, 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
4
<PAGE>
EXHIBIT A-2
FORM OF CLASS A-1B CERTIFICATE
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 1998-C1
6.480% Class A-1B Certificate
(Fixed Rate)
<TABLE>
<CAPTION>
<S> <C>
No. A-1B-[] Initial Class A-1B Certificate Balance:
CUSIP No. 22540A FS 2 $1,055,100,000.00
Rated Final Distribution Date: May 2040 Denomination of this Certificate:
$[]
</TABLE>
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
June 11, 1998, (the "Pooling and Servicing Agreement") by and among Banc One
Mortgage Capital Markets, LLC, as Servicer (the "Servicer"), Lennar Partners,
Inc., as Special Servicer ("Special Servicer"), State Street Bank and Trust
Company, as Trustee (the "Trustee"), and Credit Suisse First Boston Mortgage
Securities Corp., as Depositor (the "Depositor"). All capitalized terms herein
used and not otherwise herein defined 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 calendar month immediately preceding the calendar 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.
1
<PAGE>
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 Two International Place -4th Floor,
Boston, MA 02110, Attention: Bond Operations - Corporate Trust Department, ref:
CSFBMSC Series 1998-C1.
2
<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.
STATE STREET BANK AND TRUST COMPANY
not in its individual capacity,
but solely as Trustee
By___________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class A-1B Certificates referred to in the
within mentioned Pooling and Servicing Agreement.
STATE STREET BANK AND TRUST COMPANY
not in its individual capacity,
but solely as Trustee
By___________________________________
Authorized Officer
Dated: June 25, 1998
<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-C1, 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
4
<PAGE>
EXHIBIT A-3
FORM OF CLASS A-2MF CERTIFICATE
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 1998-C1
6.420% Class A-2MF Certificate
(Fixed Rate)
<TABLE>
<CAPTION>
<S> <C>
No. A-2MF-[] Initial Class A-2MF Certificate Balance:
CUSIP No. 22540A FT 0 $263,890,000.00
Rated Final Distribution Date: May 2040 Denomination of this Certificate:
$[]
</TABLE>
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
June 11, 1998, (the "Pooling and Servicing Agreement") by and among Banc One
Mortgage Capital Markets, LLC, as Servicer (the "Servicer"), Lennar Partners,
Inc., as Special Servicer ("Special Servicer"), State Street Bank and Trust
Company, as Trustee (the "Trustee"), and Credit Suisse First Boston Mortgage
Securities Corp., as Depositor (the "Depositor"). All capitalized terms herein
used and not otherwise herein defined 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 calendar month immediately preceding the calendar 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.
1
<PAGE>
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 Two International Place -4th Floor,
Boston, MA 02110, Attention: Bond Operations - Corporate Trust Department, ref:
CSFBMSC Series 1998-C1.
<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.
STATE STREET BANK AND TRUST COMPANY
not in its individual capacity,
but solely as Trustee
By____________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class A-2MF Certificates referred to in
the within mentioned Pooling and Servicing Agreement.
STATE STREET BANK AND TRUST COMPANY
not in its individual capacity,
but solely as Trustee
By____________________________________
Authorized Officer
Dated: June 25, 1998
<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-C1, 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
4
<PAGE>
EXHIBIT A-4
FORM OF CLASS A-X CERTIFICATE
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 1998-C1
Class A-X Certificate
Variable
<TABLE>
<CAPTION>
<S> <C>
No. A-X-[] Original Class A-X Notional Balance:
CUSIP No. 22540A FU 7 $2,482,942,297.00
Rated Final Distribution Date: May 2040 Notional Denomination of this Certificate:
$[]
</TABLE>
THIS CERTIFICATE IS AN "INTEREST ONLY" CERTIFICATE AND DOES
NOT HAVE A PRINCIPAL BALANCE. DISTRIBUTIONS WILL BE CALCULATED ON THE "CLASS
A-X NOTIONAL AMOUNT."
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
June 11, 1998, (the "Pooling and Servicing Agreement") by and among Banc One
Mortgage Capital Markets, LLC, as Servicer (the "Servicer"), Lennar Partners,
Inc., as Special Servicer ("Special Servicer"), State Street Bank and Trust
Company, as Trustee (the "Trustee"), and Credit Suisse First Boston Mortgage
Securities Corp., as Depositor (the "Depositor"). All capitalized terms herein
used and not otherwise herein defined 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 calendar month immediately preceding the calendar 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
<PAGE>
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 Two International Place -4th Floor,
Boston, MA 02110, Attention: Bond Operations - Corporate Trust Department, ref:
CSFBMSC Series 1998-C1.
2
<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.
STATE STREET BANK AND TRUST COMPANY
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.
STATE STREET BANK AND TRUST COMPANY
not in its individual capacity,
but solely as Trustee
By___________________________________
Authorized Officer
Dated: June 25, 1998
<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-C1, 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
4
<PAGE>
EXHIBIT A-5
FORM OF CLASS B CERTIFICATE
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 1998-C1
6.590% Class B Certificate
(Fixed Rate)
<TABLE>
<CAPTION>
<S> <C>
No. B-[] Initial Class B Certificate Balance:
CUSIP No. 22540A FV 5 $136,600,000.00
Rated Final Distribution Date: May 2040 Denomination of this Certificate:
$[]
</TABLE>
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE
CLASS A-1A, CLASS A-1B, CLASS A-2MF AND CLASS A-X 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 PURCHASERS 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
<PAGE>
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 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
June 11, 1998, (the "Pooling and Servicing Agreement") by and among Banc One
Mortgage Capital Markets, LLC, as Servicer (the "Servicer"), Lennar Partners,
Inc., as Special Servicer ("Special Servicer"), State Street Bank and Trust
Company, as Trustee (the "Trustee"), and Credit Suisse First Boston Mortgage
Securities Corp., as Depositor (the "Depositor"). All capitalized terms herein
used and not otherwise herein defined 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 calendar month immediately preceding the calendar 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,
2
<PAGE>
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 Two International Place -4th Floor,
Boston, MA 02110, Attention: Bond Operations - Corporate Trust Department, ref:
CSFBMSC Series 1998-C1.
3
<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.
STATE STREET BANK AND TRUST COMPANY
not in its individual capacity,
but solely as Trustee
By:__________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class B Certificates referred to in the
within mentioned Pooling and Servicing Agreement.
STATE STREET BANK AND TRUST COMPANY
not in its individual capacity,
but solely as Trustee
By____________________________________
Authorized Officer
Dated: June 25, 1998
<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-C1, 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
5
<PAGE>
EXHIBIT A-6
FORM OF CLASS C CERTIFICATE
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 1998-C1
6.780% Class C Certificate
(Fixed Rate)
<TABLE>
<CAPTION>
<S> <C>
No. C-[] Initial Class C Certificate Balance:
CUSIP No. 22540A FW 3 $136,600,000.00
Rated Final Distribution Date: May 2040 Denomination of this Certificate:
$[]
</TABLE>
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE
CLASS A-1A, CLASS A-1B, CLASS A-2MF, CLASS A-X AND CLASS B 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 PURCHASERS 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
<PAGE>
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 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
June 11, 1998, (the "Pooling and Servicing Agreement") by and among Banc One
Mortgage Capital Markets, LLC, as Servicer (the "Servicer"), Lennar Partners,
Inc., as Special Servicer ("Special Servicer"), State Street Bank and Trust
Company, as Trustee (the "Trustee"), and Credit Suisse First Boston Mortgage
Securities Corp., as Depositor (the "Depositor"). All capitalized terms herein
used and not otherwise herein defined 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 calendar month immediately preceding the calendar 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,
2
<PAGE>
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 Two International Place -4th Floor,
Boston, MA 02110, Attention: Bond Operations - Corporate Trust Department, ref:
CSFBMSC Series 1998-C1.
3
<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.
STATE STREET BANK AND TRUST COMPANY
not in its individual capacity,
but solely as Trustee
By:___________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class C Certificates referred to in the
within mentioned Pooling and Servicing Agreement.
STATE STREET BANK AND TRUST COMPANY
not in its individual capacity,
but solely as Trustee
By____________________________________
Authorized Officer
Dated: June 25, 1998
<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-C1, 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
5
<PAGE>
EXHIBIT A-7
FORM OF CLASS D CERTIFICATE
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
Commercial Mortgage Pass-Through Certificates, SERIES 1998-C1
7.170% Class D Certificate
(Fixed Rate)
<TABLE>
<CAPTION>
<S> <C>
No. D-[] Initial Class D Certificate Balance:
CUSIP No. 22540A FX 1 $136,500,000.00
Rated Final Distribution Date: May 2040 Denomination of this Certificate:
$[]
</TABLE>
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE
CLASS A-1A, CLASS A-1B, CLASS A-2MF, CLASS A-X, CLASS B AND CLASS C
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 PURCHASERS 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
<PAGE>
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 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
June 11, 1998, (the "Pooling and Servicing Agreement") by and among Banc One
Mortgage Capital Markets, LLC, as Servicer (the "Servicer"), Lennar Partners,
Inc., as Special Servicer ("Special Servicer"), State Street Bank and Trust
Company, as Trustee (the "Trustee"), and Credit Suisse First Boston Mortgage
Securities Corp., as Depositor (the "Depositor"). All capitalized terms herein
used and not otherwise herein defined 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 calendar month immediately preceding the calendar 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.
<PAGE>
The Pooling and Servicing Agreement permits, with certain
exceptions therein provided, the amendment thereof, and the modification of the
rights and obligations of the 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 Two International Place -4th Floor,
Boston, MA 02110, Attention: Bond Operations - Corporate Trust Department, ref:
CSFBMSC Series 1998-C1.
3
<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.
STATE STREET BANK AND TRUST COMPANY
not in its individual capacity,
but solely as Trustee
By:___________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class D Certificates referred to in the
within mentioned Pooling and Servicing Agreement.
STATE STREET BANK AND TRUST COMPANY
not in its individual capacity,
but solely as Trustee
By_____________________________________
Authorized Officer
Dated: June 25, 1998
<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-C1, 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
5
<PAGE>
EXHIBIT A-8
FORM OF CLASS E CERTIFICATE
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 1998-C1
Class E Certificate
Variable
<TABLE>
<CAPTION>
<S> <C>
No. E-[] Initial Class E Certificate Balance:
CUSIP No. 22540A FY 9 $37,300,000.00
Rated Final Distribution Date: May 2040 Denomination of this Certificate:
$[]
</TABLE>
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE
CLASS A-1A, CLASS A-1B, CLASS A-2MF, CLASS A-X, CLASS B, CLASS C AND CLASS 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 PURCHASERS 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
1
<PAGE>
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 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
June 11, 1998, (the "Pooling and Servicing Agreement") by and among Banc One
Mortgage Capital Markets, LLC, as Servicer (the "Servicer"), Lennar Partners,
Inc., as Special Servicer ("Special Servicer"), State Street Bank and Trust
Company, as Trustee (the "Trustee"), and Credit Suisse First Boston Mortgage
Securities Corp., as Depositor (the "Depositor"). All capitalized terms herein
used and not otherwise herein defined 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 calendar month immediately preceding the calendar 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,
<PAGE>
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 Two International Place -4th Floor,
Boston, MA 02110, Attention: Bond Operations - Corporate Trust Department, ref:
CSFBMSC Series 1998-C1.
3
<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.
STATE STREET BANK AND TRUST COMPANY
not in its individual capacity,
but solely as Trustee
By:___________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class E Certificates referred to in the
within mentioned Pooling and Servicing Agreement.
STATE STREET BANK AND TRUST COMPANY
not in its individual capacity,
but solely as Trustee
By_____________________________________
Authorized Officer
Dated: June 25, 1998
<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-C1, 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
5
<PAGE>
EXHIBIT A-9
FORM OF CLASS F CERTIFICATE
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 1998-C1
6.0% Class F Certificate
(Fixed Rate)
<TABLE>
<CAPTION>
<S> <C>
No. F-[] Initial Class F Certificate Balance:
CUSIP No. 22540A FZ 6 $142,700,000.00
Rated Final Distribution Date: May 2040 Denomination of this Certificate:
$[]
</TABLE>
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE
CLASS A-1A, CLASS A-1B, CLASS A-2MF, CLASS A-X, CLASS B, CLASS C, CLASS D AND
CLASS E 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 PURCHASERS 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
1
<PAGE>
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 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.
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.
<PAGE>
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
June 11, 1998, (the "Pooling and Servicing Agreement") by and among Banc One
Mortgage Capital Markets, LLC, as Servicer (the "Servicer"), Lennar Partners,
Inc., as Special Servicer ("Special Servicer"), State Street Bank and Trust
Company, as Trustee (the "Trustee"), and Credit Suisse First Boston Mortgage
Securities Corp., as Depositor (the "Depositor"). All capitalized terms herein
used and not otherwise herein defined 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 calendar month immediately preceding the calendar 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.
3
<PAGE>
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 Two International Place -4th Floor,
Boston, MA 02110, Attention: Bond Operations - Corporate Trust Department, ref:
CSFBMSC Series 1998-C1.
4
<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.
STATE STREET BANK AND TRUST COMPANY
not in its individual capacity,
but solely as Trustee
By:____________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class F Certificates referred to in the
within mentioned Pooling and Servicing Agreement.
STATE STREET BANK AND TRUST COMPANY
not in its individual capacity,
but solely as Trustee
By_____________________________________
Authorized Officer
Dated: June 25, 1998
<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-C1, 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
6
<PAGE>
EXHIBIT A-10
FORM OF CLASS G CERTIFICATE
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 1998-C1
6.0% Class G Certificate
(Fixed Rate)
<TABLE>
<CAPTION>
<S> <C>
No. G-[] Initial Class G Certificate Balance:
CUSIP No. 22540A GA 0 $18,700,000.00
Rated Final Distribution Date: May 2040 Denomination of this Certificate:
$[]
</TABLE>
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE
CLASS A-1A, CLASS A-1B, CLASS A-2MF, CLASS A-X, CLASS B, CLASS C, CLASS D,
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 PURCHASERS 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
1
<PAGE>
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 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.
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.
<PAGE>
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
June 11, 1998, (the "Pooling and Servicing Agreement") by and among Banc One
Mortgage Capital Markets, LLC, as Servicer (the "Servicer"), Lennar Partners,
Inc., as Special Servicer ("Special Servicer"), State Street Bank and Trust
Company, as Trustee (the "Trustee"), and Credit Suisse First Boston Mortgage
Securities Corp., as Depositor (the "Depositor"). All capitalized terms herein
used and not otherwise herein defined 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 calendar month immediately preceding the calendar 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.
3
<PAGE>
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 Two International Place -4th Floor,
Boston, MA 02110, Attention: Bond Operations - Corporate Trust Department, ref:
CSFBMSC Series 1998-C1.
4
<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.
STATE STREET BANK AND TRUST COMPANY
not in its individual capacity,
but solely as Trustee
By:___________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class G Certificates referred to in the
within mentioned Pooling and Servicing Agreement.
STATE STREET BANK AND TRUST COMPANY
not in its individual capacity,
but solely as Trustee
By____________________________________
Authorized Officer
Dated: June 25, 1998
<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-C1, 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
6
<PAGE>
EXHIBIT A-11
FORM OF CLASS H CERTIFICATE
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 1998-C1
6.0% Class H Certificate
(Fixed Rate)
<TABLE>
<CAPTION>
<S> <C>
No. H-[] Initial Class H Certificate Balance:
CUSIP No. 22540A GB 8 $49,600,000.00
Rated Final Distribution Date: May 2040 Denomination of this Certificate
$[]
</TABLE>
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE
CLASS A-1A, CLASS A-1B, CLASS A-2MF, CLASS A-X, CLASS B, CLASS C, CLASS D,
CLASS E, CLASS F AND CLASS G 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 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 PURCHASERS 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.
<PAGE>
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.
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.
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 June 11, 1998, (the "Pooling and Servicing Agreement")
by and among Banc One Mortgage Capital Markets, LLC, as Servicer (the
"Servicer"), Lennar Partners, Inc., as Special Servicer ("Special Servicer"),
State Street Bank and Trust Company, as Trustee (the "Trustee"), and Credit
Suisse First Boston Mortgage Securities Corp., as Depositor (the "Depositor").
All capitalized terms herein used and not otherwise herein defined 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 calendar month immediately preceding the calendar 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
2
<PAGE>
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 Two International Place -4th Floor,
Boston, MA 02110, Attention: Bond Operations - Corporate Trust Department, ref:
CSFBMSC Series 1998-C1.
3
<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.
STATE STREET BANK AND TRUST COMPANY
not in its individual capacity,
but solely as Trustee
By:____________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class H Certificates referred to in the
within mentioned Pooling and Servicing Agreement.
STATE STREET BANK AND TRUST COMPANY
not in its individual capacity,
but solely as Trustee
By____________________________________
Authorized Officer
Dated: June 25, 1998
<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-C1, 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
5
<PAGE>
EXHIBIT A-12
FORM OF CLASS I CERTIFICATE
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 1998-C1
6.0% Class I Certificate
(Fixed Rate)
<TABLE>
<CAPTION>
<S> <C>
No. I-[] Initial Certificate Principal Balance:
CUSIP No. 22540A GC 6 $24,800,000.00
Rated Final Distribution Date: May 2040 Denomination of this Certificate:
$[]
</TABLE>
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE
CLASS A-1A, CLASS A-1B, CLASS A-2MF, CLASS A-X, CLASS B, CLASS C, CLASS D,
CLASS E, CLASS F, CLASS G AND CLASS H 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 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 PURCHASERS 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
1
<PAGE>
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.
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.
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 June 11, 1998, (the "Pooling and Servicing Agreement")
by and among Banc One Mortgage Capital Markets, LLC, as Servicer (the
"Servicer"), Lennar Partners, Inc., as Special Servicer ("Special Servicer"),
State Street Bank and Trust Company, as Trustee (the "Trustee"), and Credit
Suisse First Boston Mortgage Securities Corp., as Depositor (the "Depositor").
All capitalized terms herein used and not otherwise herein defined 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 calendar month immediately preceding the calendar 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.
<PAGE>
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 Two International Place -4th Floor,
Boston, MA 02110, Attention: Bond Operations - Corporate Trust Department, ref:
CSFBMSC Series 1998-C1.
3
<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.
STATE STREET BANK AND TRUST COMPANY
not in its individual capacity,
but solely as Trustee
By:___________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class I Certificates referred to in the
within mentioned Pooling and Servicing Agreement.
STATE STREET BANK AND TRUST COMPANY
not in its individual capacity,
but solely as Trustee
By___________________________________
Authorized Officer
Dated: June 25, 1998
<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-C1, 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
5
<PAGE>
EXHIBIT A-13
FORM OF CLASS J CERTIFICATE
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 1998-C1
6.0% Class J Certificate
(Fixed Rate)
<TABLE>
<CAPTION>
<S> <C>
No. J-[] Initial Certificate Principal Balance:
CUSIP No. 22540A GD 4 $49,752,297.00
Rated Final Distribution Date: May 2040 Denomination of this Certificate:
$[]
</TABLE>
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE
CLASS A-1A, CLASS A-1B, CLASS A-2MF, 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 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 PURCHASERS 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
<PAGE>
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.
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.
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 June 11, 1998, (the "Pooling and Servicing Agreement")
by and among Banc One Mortgage Capital Markets, LLC, as Servicer (the
"Servicer"), Lennar Partners, Inc., as Special Servicer ("Special Servicer"),
State Street Bank and Trust Company, as Trustee (the "Trustee"), and Credit
Suisse First Boston Mortgage Securities Corp., as Depositor (the "Depositor").
All capitalized terms herein used and not otherwise herein defined 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 calendar month immediately preceding the calendar 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
2
<PAGE>
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 Two International Place -4th Floor,
Boston, MA 02110, Attention: Bond Operations - Corporate Trust Department, ref:
CSFBMSC Series 1998-C1.
<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.
STATE STREET BANK AND TRUST COMPANY
not in its individual capacity,
but solely as Trustee
By:____________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class J Certificates referred to in the
within mentioned Pooling and Servicing Agreement.
STATE STREET BANK AND TRUST COMPANY
not in its individual capacity,
but solely as Trustee
By____________________________________
Authorized Officer
Dated: June 25, 1998
<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-C1, 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
5
<PAGE>
EXHIBIT A-14
FORM OF CLASS V-1 CERTIFICATE
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 1998-C1
Class V-1 Certificate
No. V-1-[] 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 PURCHASERS 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.
<PAGE>
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 REPRESENTS, FOR FEDERAL INCOME TAX PURPOSES,
AN INTEREST IN A GRANTOR TRUST CONSISTING OF THE CSFBMC 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 June 11, 1998, (the "Pooling and Servicing Agreement")
by and among Banc One Mortgage Capital Markets, LLC, as Servicer (the
"Servicer"), Lennar Partners, Inc., as Special Servicer ("Special Servicer"),
State Street Bank and Trust Company, as Trustee (the "Trustee"), and Credit
Suisse First Boston Mortgage Securities Corp., as Depositor (the "Depositor").
All capitalized terms herein used and not otherwise herein defined 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 calendar month immediately preceding the calendar 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
2
<PAGE>
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 Two International Place -4th Floor,
Boston, MA 02110, Attention: Bond Operations - Corporate Trust Department, ref:
CSFBMSC Series 1998-C1.
3
<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.
STATE STREET BANK AND TRUST COMPANY
not in its individual capacity,
but solely as Trustee
By:___________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class V-1 Certificates referred to in the
within mentioned Pooling and Servicing Agreement.
STATE STREET BANK AND TRUST COMPANY
not in its individual capacity,
but solely as Trustee
By____________________________________
Authorized Officer
Dated: June 25, 1998
<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-C1, 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
5
<PAGE>
EXHIBIT A-15
FORM OF CLASS V-2 CERTIFICATE
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 1998-C1
Class V-2 Certificate
No. V-2-[] 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 PURCHASERS 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.
<PAGE>
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 REPRESENTS, FOR FEDERAL INCOME TAX PURPOSES,
AN INTEREST IN A GRANTOR TRUST CONSISTING OF THE PWRES 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 PAINEWEBBER INCORPORATED (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 June 11, 1998, (the "Pooling and Servicing Agreement") by and among
Banc One Mortgage Capital Markets, LLC, as Servicer (the "Servicer"), Lennar
Partners, Inc., as Special Servicer ("Special Servicer"), State Street Bank and
Trust Company, as Trustee (the "Trustee"), and Credit Suisse First Boston
Mortgage Securities Corp., as Depositor (the "Depositor"). All capitalized
terms herein used and not otherwise herein defined 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 calendar month immediately preceding the calendar 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
2
<PAGE>
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 Two International Place -4th Floor,
Boston, MA 02110, Attention: Bond Operations - Corporate Trust Department, ref:
CSFBMSC Series 1998-C1.
3
<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.
STATE STREET BANK AND TRUST COMPANY
not in its individual capacity,
but solely as Trustee
By:___________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class V-2 Certificates referred to in the
within mentioned Pooling and Servicing Agreement.
STATE STREET BANK AND TRUST COMPANY
not in its individual capacity,
but solely as Trustee
By_____________________________________
Authorized Officer
Dated: June 25, 1998
<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-C1, 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
5
<PAGE>
EXHIBIT A-16
FORM OF CLASS R CERTIFICATE
CLASS R 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.
<PAGE>
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), 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 PURCHASERS 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 CERTIFICATE IS RESTRICTED AS SET
FORTH IN THE POOLING AND SERVICING AGREEMENT. NO TRANSFER OF THIS CLASS R
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 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 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.
2
<PAGE>
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 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.
3
<PAGE>
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 1998-C1
Class R Certificate
(Upper Tier REMIC Residual)
No: R-[] Percentage Interest: []%
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 June 11, 1998, (the "Pooling and Servicing Agreement")
by and among Banc One Mortgage Capital Markets, LLC, as Servicer (the
"Servicer"), Lennar Partners, Inc., as Special Servicer ("Special Servicer"),
State Street Bank and Trust Company, as Trustee (the "Trustee"), and Credit
Suisse First Boston Mortgage Securities Corp., as Depositor (the "Depositor").
All capitalized terms herein used and not otherwise herein defined 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 calendar month immediately preceding the calendar 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
4
<PAGE>
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 Two International Place -4th Floor,
Boston, MA 02110, Attention: Bond Operations - Corporate Trust Department, ref:
CSFBMSC Series 1998-C1.
5
<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.
STATE STREET BANK AND TRUST COMPANY
not in its individual capacity,
but solely as Trustee
By:___________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class R Certificates referred to in the
within mentioned Pooling and Servicing Agreement.
STATE STREET BANK AND TRUST COMPANY
not in its individual capacity,
but solely as Trustee
By____________________________________
Authorized Officer
Dated: June 25, 1998
<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-C1, 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
7
<PAGE>
EXHIBIT A-17
FORM OF CLASS LR CERTIFICATE
CLASS 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
<PAGE>
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), 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 PURCHASERS 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 LR CERTIFICATE IS RESTRICTED AS SET
FORTH IN THE POOLING AND SERVICING AGREEMENT. NO TRANSFER OF THIS CLASS 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
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 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.
2
<PAGE>
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 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.
3
<PAGE>
FORM OF CLASS LR CERTIFICATE
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 1998-C1
Class LR Certificate
(Lower Tier REMIC Residual)
No: LR-[] Percentage Interest: []%
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 June 11, 1998, (the "Pooling and Servicing Agreement")
by and among Banc One Mortgage Capital Markets, LLC, as Servicer (the
"Servicer"), Lennar Partners, Inc., as Special Servicer ("Special Servicer"),
State Street Bank and Trust Company, as Trustee (the "Trustee"), and Credit
Suisse First Boston Mortgage Securities Corp., as Depositor (the "Depositor").
All capitalized terms herein used and not otherwise herein defined 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 calendar month immediately preceding the calendar 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.
4
<PAGE>
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 Two International Place -4th Floor,
Boston, MA 02110, Attention: Bond Operations - Corporate Trust Department, ref:
CSFBMSC Series 1998-C1.
5
<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.
STATE STREET BANK AND TRUST COMPANY
not in its individual capacity,
but solely as Trustee
By:___________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class LR Certificates referred to in the
within mentioned Pooling and Servicing Agreement.
STATE STREET BANK AND TRUST COMPANY
not in its individual capacity,
but solely as Trustee
By____________________________________
Authorized Officer
Dated: June 25, 1998
<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-C1, 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
7
<PAGE>
EXHIBIT B
MORTGAGE LOAN SCHEDULE
(previously filed with 424(b)(5) filing)
<PAGE>
EXHIBIT C
FORM OF INVESTMENT REPRESENTATION LETTER
State Street Bank and Trust Company
2 International Place - 4th Floor
Boston, MA 02110
Attn.: Corporate Trust Department - Bond Operations
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-C1
Ladies and Gentlemen:
This letter is delivered pursuant to Section 5.02 of the Pooling and
Servicing Agreement dated as of June 11, 1998 (the "Pooling and Servicing
Agreement"), by and among Credit Suisse First Boston Mortgage Securities Corp.,
as Depositor, Banc One Mortgage Capital Markets, LLC, as Servicer, Lennar
Partners, Inc., as Special Servicer, and State Street Bank and Trust Company,
as Trustee, on behalf of the holders of Credit Suisse First Boston Mortgage
Securities Corp. Commercial Mortgage Pass-Through Certificates, Series 1998-C1
(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, 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 "1933 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 or (b) for resale to "qualified
institutional buyers" in transactions under Rule 144A, 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 1933 Act, by reason of a specified exemption
from the registration provisions of the 1933 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.
C-1
<PAGE>
3. The Purchaser has reviewed the Private Placement Memorandum
relating to the Certificate (the "Memorandum") 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 Memorandum.
4. The Purchaser acknowledges that the Certificate (and any
Certificate issued on transfer or exchange thereof) has not been registered or
qualified under the 1933 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 created or organized in or under the laws of the United States
or any of its political subdivisions, 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 fiduciaries have
the authority to control all substantial decisions of such trust, or (B) for
all other
- ---------------
(1) Each Purchaser must include one of the two alternative certifications.
C-2
<PAGE>
taxable years, such trust is subject to United States federal income tax
regardless of the source of its income.
8. If the Certificate is a Class F, Class G, Class H, Class I or Class
J Certificate, 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. If the Certificate is a Class F, Class G, Class H, Class I or Class
J Certificate, the Purchaser understands that if the Purchaser 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 Purchasers 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 ERISA
Representation Letter on the ____ day of_________,___.
Very truly yours,
[THE PURCHASER]
By:___________________________
Name:_________________________
Title:________________________
C-3
<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 )
)
COUNTY OF )
____________________, being first duly sworn, deposes and says:
1. That he/she is a ____________________ of ________________________
(the "Purchaser"), a ______________________________ duly organized and existing
under the laws of the State of ____________________ on behalf of which he makes
this affidavit.
2. That the Purchaser's Taxpayer Identification Number is
____________________.
3. That the Purchaser of the Credit Suisse First Boston Mortgage
Securities Corp., Commercial Mortgage Pass-Through Certificates, Series
1998-C1, Class [LR/R] and Class LR Certificates (the "Residual Certificates")
evidencing ____% Percentage Interest in each such Class, (i) is not a
Disqualified Organization or a Non-U.S. Person (as defined in Article I of the
Pooling and Servicing Agreement, dated as of June 11, 1998, by and among Credit
Suisse First Boston Mortgage Securities Corp., as Depositor, Banc One Mortgage
Capital Markets, LLC, as Servicer, Lennar Partners, Inc., as Special Servicer,
and State Street Bank and Trust Company, 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 [LR/R] Certificates or (ii) is acquiring the
Residual Certificates 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 and has received from such person or entity
an affidavit substantially in the form of this affidavit.
4. That the Purchaser historically has paid its debts as they have
come due and intends to pay its debts as they come due in the future and the
Purchaser intends to pay taxes associated with holding the Residual
Certificates as they become due.
5. That the Purchaser understands that it may incur tax liabilities
with respect to the Residual Certificates in excess of any cash flow generated
by the Residual Certificates.
6. That the Purchaser will not transfer any of the Residual
Certificates to any person or entity from which the Purchaser has not received
an affidavit substantially in the form of this affidavit or as to which the
Purchaser has actual knowledge that the requirements set forth
<PAGE>
in paragraph 3 or paragraph 4 hereof are not satisfied or that the Purchaser
has reason to know does not satisfy the requirements set forth in paragraph 4
hereof.
7. That the Purchaser agrees to such amendments of the Pooling and
Servicing Agreement as may be required to further effectuate the restrictions
on transfer of the Residual Certificates to such a Disqualified Organization or
a Non-U.S. Person, an agent thereof, or a person that does not satisfy the
requirements of paragraph 3 and paragraph 4 hereof.
8. That, if a "tax matters person" is required to be designated with
respect to the Upper-Tier REMIC and the Lower-Tier REMIC, the Purchaser agrees
to act as "tax matters person" and to perform the functions of "tax matters
person" of the Upper-Tier REMIC and the Lower-Tier REMIC pursuant to Section
4.04 of the Pooling and Servicing Agreement, and agrees to the irrevocable
designation of the Trustee as the Purchaser's agent in performing the function
of "tax matters person."
9. The Purchaser agrees to be bound by and to abide by the provisions
of Section 5.02 of the Pooling and Servicing Agreement concerning registration
of the transfer and exchange of the Residual Certificates.
10. That the Purchaser is aware (i) of the tax that would be imposed
on transfers of Class [LR/R] Certificates to disqualified organizations under
the Code; (ii) that such tax would be on the transferor (or, with respect to
transfers to electing large partnerships, on such partnership), or, if such
transfer is through an agent (which person includes a broker, nominee or
middleman) for a disqualified organization, on the agent; (iii) that the person
otherwise liable for the tax (other than transfers with respect to electing
large partnerships) shall be relieved of liability for the tax if the
transferee furnishes to such person an affidavit that the transferee is not a
disqualified organization and, at the time of transfer, such person does not
have actual knowledge that the affidavit is false; and (iv) that the Class
[LR/R] Certificates may be "noneconomic residual interests" within the meaning
of Treasury regulations promulgated pursuant to the Code and that the
transferor of a noneconomic residual interest will remain liable for any taxes
due with respect to the income on such residual interest, unless no significant
purpose of the transfer was to impede the assessment or collection of tax.
11. That the Purchaser is aware of the tax imposed on a "pass-through
entity" holding Class [LR/R] Certificates if at any time during the taxable
year of the pass-through entity a disqualified organization is the record
holder of an interest in such entity. (For this purpose, a "pass through
entity" includes a regulated investment company, a real estate investment trust
or common trust fund, a partnership, trust or estate, and certain
cooperatives.)
12. That the Purchaser is aware that the Trustee will not register the
transfer of any Class [LR/R] Certificates unless the transferee, or the
transferee's agent, delivers to it an affidavit and agreement, among other
things, in substantially the same form as this affidavit and agreement. The
Purchaser expressly agrees that it will not consummate any such transfer if it
knows or believes that any of the representations contained in such affidavit
and agreement are false.
D-1-2
<PAGE>
13. That the Purchaser has reviewed the restrictions set forth on the
face of the Class [LR/R] Certificates and the provisions of Section 5.02(d) of
the Pooling and Servicing Agreement under which the Class [LR/R] Certificates
were issued (in particular, clause (ii) of Section 5.02(d) which authorizes the
Trustee to deliver payments to a person other than the Purchaser in the event
the Purchaser holds such Certificates in violation of Section 5.02(d)). The
Purchaser expressly agrees to be bound by and to comply with such restrictions
and provisions.
14. That no purpose of the Purchaser relating to the transfer of any
of the Class [LR/R] Certificates by the Purchaser is or will be to impede the
assessment or collection of any tax.
Capitalized terms used but not defined herein have the respective
meanings ascribed to such terms in the Pooling and Servicing Agreement.
IN WITNESS WHEREOF, the Purchaser has caused this instrument to be
executed on its behalf by its ____________________ this ____ day of
___________, 199_.
------------------------------------------
Name of Purchaser
By:_______________________________________
Name:_____________________________________
Title:____________________________________
D-1-3
<PAGE>
EXHIBIT D-2
FORM OF TRANSFEROR CERTIFICATE
______________, 19__
Credit Suisse First Boston
Mortgage Securities Corp.
Eleven Madison Avenue
New York, New York 10010
State Street Bank and Trust Company
2 International Place - 4th Floor
Boston, MA 02110
Attention: Corporate Trust Department - Bond Operations
Re: Commercial Mortgage-Pass Through Certificates,
Series 1998-C1, Class [LR/R]
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
_______________ (the "Seller") to __________________ (the "Purchaser") of
$_________ initial Certificate Principal Balance of Commercial Mortgage
Pass-Through Certificates, Class [LR/R] (the "Certificates"), pursuant to
Section 5.02 of the Pooling and Servicing Agreement, dated as of June 11, 1998,
among Credit Suisse First Boston Mortgage Securities Corp., as depositor (the
"Depositor"), Banc One Mortgage Capital Markets, LLC, as servicer (the
"Servicer"), Lennar Partners, Inc., as special servicer (the "Special
Servicer"), and State Street Bank and Trust Company, as trustee (the
"Trustee"). All terms used herein and not otherwise defined shall have the
meanings set forth in the Pooling and Servicing Agreement.
The Seller hereby certifies, represents and warrants to, and
covenants with, the Depositor and the Trustee that:
1. No purpose of the Seller relating to the transfer of the
Certificate by the Seller to the Purchaser is or will be to
impede the assessment or collection of any tax.
2. The Seller understands that the Purchaser has delivered to the
Trustee and the Servicer a transfer affidavit in the form
attached to the Pooling and Servicing Agreement as Exhibit D-1.
The Seller does not know or believe that any representation
contained therein is false.
<PAGE>
3. The Seller has at the time of the transfer conducted a
reasonable investigation of the financial condition of the
Purchaser as contemplated by Treasury Regulations Section
1.860E-1(c)(4)(i) and, as a result of that investigation, the
Seller has determined that the Purchaser has historically paid
its debts as they become due and has found no significant
evidence to indicate that the Purchaser will not continue to
pay its debts as they become due in the future. The Seller
understands that the transfer of a Class [LR/R] Certificate may
not be respected for United States income tax purposes (and the
Seller may continue to be liable for United States income
taxes associated therewith) unless the Seller has conducted
such an investigation.
4. The Seller has no actual knowledge that the proposed
Transferee is not a person other than a Disqualified
Organization and a Non-U.S. Person.
Very truly yours,
------------------------------
(Seller)
By:__________________________
Name:________________________
Title:_______________________
2
<PAGE>
EXHIBIT E
MEZZANINE LOAN SCHEDULE
(previously filed with 424(b)(5) filing)
<PAGE>
EXHIBIT F
FORM OF REQUEST FOR RELEASE
DATE:
TO: State Street Bank and Trust Company
225 Franklin Street
Boston, MA 02110
Attention: Mortgage Custody Department - Release Area
RE: REQUEST FOR RELEASE OF DOCUMENTS
In connection with the administration of the pool of Mortgage Loans held by you
for the referenced pool, we request the release of the Mortgage Loan File
described below.
Pooling and Servicing Agreement Dated:
Series#:
Account#:
Pool#:
Loan#:
Borrower Name(s):
Reason for Document Request: (indicate one)
[ ] Mortgage Loan Prepaid in Full
[ ] Mortgage Loan Repurchased or Sold
[ ] Other (specify)
"We hereby certify that all amounts received or to be received in connection
with such payments which are required to be deposited have been or will be so
deposited as provided in the Pooling and Servicing Agreement."
[BANC ONE MORTGAGE CAPITAL MARKETS, LLC][LENNAR PARTNERS, INC.] Authorized
Signature of Servicing Officer or Special Servicing Officer
*******************************************************************************
TO CUSTODIAN/TRUSTEE: Please acknowledge this request, and check off documents
being enclosed with a copy of this form. You should retain this form for your
files in accordance with the terms of the Pooling and Servicing Agreement.
Enclosed Documents: [ ] Promissory Note
[ ] Primary Insurance Policy
[ ] Mortgage or Deed of Trust
[ ] Assignment(s) of Mortgage or Deed of Trust
[ ] Title Insurance Policy
[ ] Other:
Name
Title
Date
<PAGE>
EXHIBIT G
[RESERVED]
<PAGE>
EXHIBIT H
[RESERVED]
<PAGE>
EXHIBIT I-1
FORM OF COMPARATIVE FINANCIAL STATUS REPORT
(previously filed with 424(b)(5) filing)
<PAGE>
EXHIBIT I-2
FORM OF DELINQUENT LOAN STATUS REPORT
(previously filed with 424(b)(5) filing)
<PAGE>
EXHIBIT I-3
FORM OF HISTORICAL LOAN MODIFICATION REPORT
(previously filed with 424(b)(5) filing)
<PAGE>
EXHIBIT I-4
FORM OF HISTORICAL LOSS ESTIMATION REPORT
(previously filed with 424(b)(5) filing)
<PAGE>
EXHIBIT I-5
FORM OF REO STATUS REPORT
(previously filed with 424(b)(5) filing)
<PAGE>
EXHIBIT I-6
FORM OF SERVICER WATCH LIST
(previously filed with 424(b)(5) filing)
<PAGE>
EXHIBIT I-7
FORM OF OPERATING STATEMENT ANALYSIS
(previously filed with 424(b)(5) filing)
<PAGE>
EXHIBIT J
[RESERVED]
<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. (a) 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 Note holder to Credit Suisse
First Boston Mortgage Securities Corp. (the "Depositor" or the "Purchaser") and
subsequent assignment by
<PAGE>
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-C1 (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) promptly to 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__
2
<PAGE>
EXHIBIT L
YIELD PROTECTION PAYMENT TABLE
<PAGE>
Exhibit 99.1
================================================================================
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
(Depositor or Purchaser)
and
CREDIT SUISSE FIRST BOSTON MORTGAGE CAPITAL LLC
(Seller)
-------------------------------------------
MORTGAGE LOAN PURCHASE AGREEMENT
Dated as of June 11, 1998
-------------------------------------------
===============================================================================
<PAGE>
TABLE OF CONTENTS
PAGE
1. TRANSACTIONS ON OR PRIOR TO THE CLOSING DATE.............................1
2. CLOSING DATE ACTIONS.....................................................1
3. CONVEYANCE OF MORTGAGE LOANS.............................................2
4. DEPOSITOR'S CONDITIONS TO CLOSING........................................5
5. SELLER'S CONDITIONS TO CLOSING...........................................7
6. REPRESENTATIONS AND WARRANTIES OF SELLER.................................7
7. CURE AND REPURCHASE OBLIGATIONS OF SELLER................................9
7A. ADDITIONAL OBLIGATIONS OF THE SELLER....................................10
8. REPRESENTATIONS AND WARRANTIES OF DEPOSITOR.............................11
9. SURVIVAL OF CERTAIN REPRESENTATIONS, WARRANTIES AND COVENANTS...........12
10. ACCOUNTANT'S LETTERS....................................................12
11. EXPENSES; RECORDING COSTS...............................................12
12. NOTICES.................................................................12
13. EXAMINATION OF MORTGAGE FILES...........................................12
14. SUCCESSORS..............................................................12
15. GOVERNING LAW...........................................................13
16. SEVERABILITY............................................................13
17. FURTHER ASSURANCES......................................................13
18. COUNTERPARTS............................................................13
19. TREATMENT AS SECURITY AGREEMENT.........................................13
20. RECORDATION OF AGREEMENT................................................15
-i-
<PAGE>
TABLE OF CONTENTS
PAGE
1. TRANSACTIONS ON OR PRIOR TO THE CLOSING DATE......................1
2. CLOSING DATE ACTIONS..............................................1
3. CONVEYANCE OF MORTGAGE LOANS......................................2
4. DEPOSITOR'S CONDITIONS TO CLOSING.................................5
5. SELLER'S CONDITIONS TO CLOSING....................................7
6. REPRESENTATIONS AND WARRANTIES OF SELLER..........................7
7. CURE AND REPURCHASE OBLIGATIONS OF SELLER.........................8
8. REPRESENTATIONS AND WARRANTIES OF DEPOSITOR.......................9
9. SURVIVAL OF CERTAIN REPRESENTATIONS, WARRANTIES AND COVENANTS....10
10. ACCOUNTANT'S LETTERS.............................................11
11. EXPENSES; RECORDING COSTS........................................11
12. NOTICES..........................................................11
13. EXAMINATION OF MORTGAGE FILES....................................11
14. SUCCESSORS.......................................................11
15. GOVERNING LAW....................................................12
16. SEVERABILITY.....................................................12
17. FURTHER ASSURANCES...............................................12
18. COUNTERPARTS.....................................................12
19. TREATMENT AS SECURITY AGREEMENT..................................12
20. RECORDATION OF AGREEMENT.........................................13
Schedule I Schedule of Transaction Terms
Schedule II Mortgage Loan Schedule
Schedule III Mortgage Loans Constituting Mortgage Groups
Schedule IV Mortgage Loans with Lost Mortgage Notes
Schedule V Exceptions to Seller's Representations and Warranties
Exhibit A Representations and Warranties of Seller regarding the Mortgage
Loans
Exhibit B Form of Lost Mortgage Note Affidavit
Exhibit C Form of Assignment of Mortgage(s) and Assignment of Assignment of
Lessor's Interests in Leases, Rents and Profits
Exhibit D Form of Seller's In-House Counsel Opinion
-i-
<PAGE>
MORTGAGE LOAN PURCHASE AGREEMENT
This Mortgage Loan Purchase Agreement (this "Agreement"),
dated as of June 11, 1998, is made by and between CREDIT SUISSE FIRST BOSTON
MORTGAGE CAPITAL LLC, a Delaware limited liability company ("Seller") and
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP., a Delaware corporation
("Depositor" or the "Purchaser").
RECITALS
I. Capitalized terms used herein without definition have the
meanings ascribed to them in the Schedule of Transaction Terms attached hereto
as Schedule I, which is incorporated herein by this reference, or, if not
defined therein, in the Pooling and Servicing Agreement.
II. On the Closing Date, and on the terms set forth herein,
Seller has agreed to sell to Depositor and Depositor has agreed to purchase
from Seller the Mortgage Loans and the Ritz-Carlton REMIC Asset identified on
the schedule (the "Mortgage Loan Schedule") annexed hereto as Schedule II.
Depositor has agreed to deposit the Mortgage Loans and other assets into the
Trust Fund created pursuant to the Pooling and Servicing Agreement and to cause
the issuance of the Certificates.
AGREEMENT
NOW, THEREFORE, on the terms and conditions set forth below
and for good and valuable consideration, the receipt and adequacy of which is
hereby acknowledged, Depositor and Seller agree as follows:
1. Transactions on or Prior to the Closing Date. On or prior
to the Closing Date hereof, Seller shall have delivered the Mortgage Files with
respect to each of the Mortgage Loans listed in the Mortgage Loan Schedule to
State Street Bank and Trust Company, as custodian (in such capacity, the
"Custodian") or as trustee (in such capacity the "Trustee"), against receipt
by Seller of a trust receipt, pursuant to an arrangement between Seller and
the Custodian. As of the date hereof and as of the Closing Date, the Mortgage
Loans and the related Mortgage Files and the Ritz-Carlton REMIC Asset shall
comply in all material respects with the representations and warranties set
forth in Exhibit A.
2. Closing Date Actions. The sale of the Mortgage Loans and
the Ritz-Carlton REMIC Asset shall take place on the Closing Date, subject to
and simultaneously with the deposit of the Mortgage Loans and the Ritz-Carlton
REMIC Asset into the Trust Fund, the issuance of the Certificates and the sale
of (a) the Offered Certificates by Depositor to the Underwriters pursuant to
the Underwriting Agreement and (b) the Private Certificates by Depositor to the
Initial Purchasers pursuant to the Certificate Purchase Agreement. The closing
shall take place at the offices of Orrick, Herrington & Sutcliffe LLP, 666
Fifth Avenue, New York, New York 10103, or such other location as agreed upon
between the parties hereto. On the Closing Date, the following actions shall
take place in sequential order on the terms set forth herein:
<PAGE>
(i) Seller shall sell to Depositor, and Depositor shall
purchase from Seller, the Mortgage Loans and the Ritz-Carlton REMIC Asset
pursuant to this Agreement for the Mortgage Loan Purchase Price payable in
accordance with instructions previously provided to Depositor by Seller.
The Mortgage Loan Purchase Price (as defined herein) shall be paid by
Depositor to Seller or at its direction by wire transfer in immediately
available funds to an account designated by Seller on or prior to the
Closing Date. The "Mortgage Loan Purchase Price" paid by Depositor shall
be equal to 105.27% of the aggregate outstanding principal balance of the
Mortgage Loans, after giving effect to any scheduled monthly payments due
on or prior to the Cut-off Date, plus accrued interest at the weighted
average Mortgage Rate from the Cut-off Date to but not including the
Closing Date.
(ii) Pursuant to the terms of the Pooling and Servicing
Agreement, Depositor shall sell all of its right, title and interest in
and to the Mortgage Loans to the Trustee for the benefit of the Holders of
the Certificates.
(iii) Depositor shall sell to the Underwriters, and the
Underwriters shall purchase from Depositor, the Offered Certificates
pursuant to the Underwriting Agreement, and Depositor shall sell to the
Initial Purchasers, and the Initial Purchasers shall purchase from
Depositor, the Private Certificates pursuant to the Certificate Purchase
Agreement.
(iv) The Underwriters will offer the Offered Certificates for
sale to the public pursuant to the Prospectus and the Prospectus
Supplement and the Initial Purchasers will privately place certain classes
of the Certificates.
3. Conveyance of Mortgage Loans. Upon the sale of the Mortgage
Loans on the Closing Date, Seller, for and in consideration of the Mortgage
Loan Purchase Price, and for other good and valuable consideration, the
sufficiency of which is hereby acknowledged, does hereby bargain, sell,
convey, assign and transfer, without recourse except as provided herein, to
Depositor, free and clear of any liens, claims or other encumbrances, all of
Seller's right, title and interest in and to each of the Mortgage Loans and the
Ritz-Carlton REMIC Asset identified on the Mortgage Loan Schedule and all
property of Seller described in Section 19 of this Agreement. On or prior to
the Closing Date, each Mortgage File and, in the case of the Ritz-Carlton
REMIC Asset, the Certificate representing such Ritz-Carlton REMIC Asset, has
been delivered by Seller to the Custodian. Each Mortgage File (other than the
Mortgage File relating to the Ritz-Carlton REMIC Asset) shall contain the
following documents:
(a) the original Mortgage Note, or with respect to those
Mortgage Loans listed in Schedule IV hereto, a "lost note" affidavit
substantially in the form of Exhibit B hereto and a true and complete copy
of the Mortgage Note, bearing, or accompanied by, all prior and
intervening endorsements or assignments thereof showing a complete chain
of endorsement or assignment from the Originator of the related Mortgage
Loan to Seller, and further endorsed (at the direction of Depositor given
pursuant to this Agreement) by 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 State Street Bank and Trust Company, as trustee
for the registered Holders of Credit Suisse First Boston Mortgage
2
<PAGE>
Securities Corp. Commercial Mortgage Pass-Through Certificates, Series
1998-C1, without recourse, representation or warranty, express or
implied";
(b) a duplicate original Mortgage (or a certified copy
thereof from the applicable recording office) and originals (or certified
copies from the applicable recording office) of any intervening
assignments thereof showing a complete chain of assignment from the
Originator of the related Mortgage Loan to Seller, in each case with
evidence of recording indicated thereon;
(c) an original (or a true and complete copy if the original
has been sent by the Seller for recordation) Assignment of Mortgage
substantially in the form of Exhibit C hereto, in recordable form, from
Seller to State Street Bank and Trust Company, as trustee for the
registered Holders of Credit Suisse First Boston Mortgage Securities Corp.
Commercial Mortgage Pass-Through Certificates, Series 1998-C1;
(d) an original Assignment of Leases (if such item is a
document separate from the Mortgage), in recordable form;
(e) an original (or a true and complete copy if the original
has been sent by the Seller for recordation) of any related assignment of
Assignment of Leases (if such item is a document separate from the
Mortgage) substantially in the form of Exhibit C hereto and the originals
or copies of any intervening assignments thereof showing a complete chain
of assignment from the Originator of the related Mortgage Loan to Seller,
in each case with evidence of recording thereon;
(f) an original or a true and complete copy of any related
Security Agreement (if such item is a document separate from the Mortgage)
and the originals or copies of any intervening assignments thereof showing
a complete chain of assignment from the Originator of the related Mortgage
Loan to Seller;
(g) an original assignment of any related Security Agreement
(if such item is a document separate from the Mortgage), in recordable
form, executed by Seller in favor of State Street Bank and Trust Company,
as trustee for the registered Holders of Credit Suisse First Boston
Mortgage Securities Corp. Commercial Mortgage Pass-Through Certificates,
Series 1998-C1;
(h) originals or true and complete 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 related Mortgage or Mortgage Note or any
related security document have been modified or the related Mortgage Loan
has been assumed;
(i) the original lender's title insurance policy or a copy
thereof effective as of the date of the recordation of the related
Mortgage Loan, together with all endorsements or riders that were issued
with or subsequent to the issuance of such policy, insuring the priority
of the related Mortgage as a first lien on the Mortgagor's fee or
leasehold, as applicable, interest in the Mortgaged Property (subject to
the matters set forth in paragraph (xi) of Exhibit A hereto), or if the
policy has not yet been issued, a written
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commitment or interim binder, dated as of the date the related Mortgage
Loan was funded;
(j) the original or a true and complete copy of any guaranty
of the obligations of the Mortgagor under the related Mortgage Loan;
(k) 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 related Mortgage 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 to transfer such security interest to the Trustee;
(l) the original power of attorney (with evidence of
recording thereon) granted by the Mortgagor if the Mortgage, Mortgage Note
or other document or instrument referred to above was not signed by the
Mortgagor;
(m) with respect to any debt of a Borrower permitted under
the related Mortgage Loan, a subordination agreement, standstill agreement
or other intercreditor agreement relating to such other debt, if any;
(n) 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 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);
(o) any Loan Agreement; and
(p) any additional documents required to be added to the
Mortgage File pursuant to this Agreement.
Notwithstanding the foregoing, in the event that, in
connection with any Mortgage Loan, Seller cannot deliver an original recorded
counterpart of any of the documents required to be delivered pursuant to
clauses (b), (d), (f), (h), (k) and (l) above with evidence of recording or
filing thereon concurrently with the execution and delivery hereof, solely
because of a delay caused by the public recording office where such document or
instrument has been delivered for recordation, Seller shall deliver, or cause
to be delivered, to the Custodian a duplicate original or true copy of such
document certified by the applicable public recording or filing office to be a
true and complete duplicate original or copy of the original thereof submitted
for recording or filing.
The Mortgage File relating to the Ritz-Carlton REMIC Asset
shall contain the documents set forth in the trust agreement dated as of June
11, 1998, pursuant to which the Ritz-Carlton REMIC Asset was issued.
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Upon discovery of any Defect (as defined herein) or omission
in the deliveries of any of the items in this Section 3 with respect to any
Mortgage Loan, Seller shall promptly deliver or cause to be delivered to the
Custodian a correct and complete document or instrument meeting the
requirements of such item, but in no event shall any such delivery be made
later than 90 days following Seller's receipt of notice of such discovery;
provided, however, that if such Defect or omission would cause such Mortgage
Loan to be other than a "qualified mortgage" under Section 860G(a)(3) of the
Code, Seller shall cure such Defect or omission within 90 days of discovery.
Notwithstanding the foregoing, in the event that Seller
cannot deliver to the Custodian any UCC-2 or UCC-3 assignment with the filing
information of the UCC-1 financing statement being assigned, solely because of
a delay caused by the public filing office where such UCC-1 financing statement
has been delivered for filing, Seller shall deliver or cause to be delivered to
the Custodian a photocopy of such UCC-2 or UCC-3 assignment with the filing
information left blank. Seller, promptly upon receipt of the applicable filing
information of the UCC-1 financing statement being so assigned, shall deliver
to the Custodian the original UCC-2 or UCC-3 assignment with all appropriate
filing information set forth thereon.
The Trustee, as assignee or transferee of Depositor, shall be
entitled to all scheduled principal payments due after the Cut-off Date, all
other payments of principal due and collected after the Cut-off Date, and all
payments of interest on the Mortgage Loans and the Ritz-Carlton REMIC Asset,
minus that portion of any such payment which is allocable to the period on or
prior to the Cut-off Date. All scheduled payments of principal due on or before
the Cut-off Date and collected after the Cut-off Date, together with the
accompanying interest payments, shall belong to Seller.
Upon the sale of the Mortgage Loans and the Ritz-Carlton
REMIC Asset from Seller to Depositor pursuant hereto, the ownership of each
Mortgage Note, the Mortgage and the contents of the related Mortgage File shall
be vested in Depositor and the ownership of all records and documents with
respect to the related Mortgage Loan and the Ritz-Carlton REMIC Asset prepared
by or which come into the possession of Seller as seller of the Mortgage Loans
and the Ritz-Carlton REMIC Asset hereunder, exclusive in each case of documents
prepared by Seller or any of its affiliates solely for internal uses, shall
immediately vest in Depositor and shall be forwarded by Seller to the Custodian
by overnight mail for next-day delivery and retained and maintained, in trust,
by the Custodian at the will of Depositor, in such custodial capacity only. All
Monthly Payments, Principal Prepayments and other amounts received by Seller
and not otherwise belonging to Seller pursuant to this Agreement shall be sent
by Seller within three (3) Business Days of Seller's receipt thereof to the
Servicer via wire transfer for deposit by the Servicer into the Collection
Account.
4. Depositor's Conditions to Closing. The obligations of
Depositor under this Agreement shall be subject to the satisfaction, on the
Closing Date, of the following conditions:
(a) Each of the obligations of Seller required to be
performed by it on or prior to the Closing Date pursuant to the terms of
this Agreement shall have been duly performed and complied with in all
material respects; all of the representations and warranties of Seller
under this Agreement shall be true and correct in all material respects
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as of the date hereof and as of the Closing Date; and no event shall have
occurred with respect to Seller or any of the Mortgage Loans or the
Ritz-Carlton REMIC Asset and related Mortgage Files which, with notice or
the passage of time, would constitute a material default under this
Agreement; and Depositor shall have received certificates to the foregoing
effect signed by authorized officers of Seller.
(b) Depositor, or if directed by Depositor, the Custodian or
Depositor's attorneys, shall have received in escrow, all of the following
closing documents, in such forms as are agreed upon and reasonably
acceptable to Depositor and Seller, duly executed by all signatories other
than Depositor, as required pursuant to the respective terms thereof:
(i) the Mortgage Files, which shall have been delivered to
and held by the Custodian on behalf of Seller;
(ii) the Mortgage Loan Schedule;
(iii) an officer's certificate of Seller, dated as of the
Closing Date, with certified copies of the charter, by-laws, and a
certificate of good standing dated as of a recent date of Seller;
(iv) an opinion of Seller's in-house counsel, dated the
Closing Date, in substantially the same form as Exhibit D attached
hereto.
Such opinion may express its reliance as to factual matters
on, among other things specified in such opinion, the representations
and warranties made herein, and on certificates or other documents
furnished by officers of Seller.
In rendering the opinions expressed above, such counsel may
limit such opinions to matters governed by the Limited Liability Company
Act of the State of Delaware and the laws of the State of New York and
the United States and shall not be required to express any opinion with
respect to the registration or qualification of the Certificates under
any applicable state or federal securities laws.
Such counsel shall state that, although such counsel has
not specifically considered the possible applicability to Seller of any
other laws, regulations, judgments, orders or decrees, no facts have
been disclosed to such counsel that cause such counsel to conclude that
any other consent, approval or action is required;
(v) an opinion of Orrick, Herrington & Sutcliffe, LLP,
special counsel to Seller, dated the Closing Date, substantially to the
effect of the following (with such changes and modifications as
Depositor may approve):
Assuming the due authorization, execution and delivery of
this Agreement by Seller, this Agreement constitutes a
valid and binding agreement of Seller, enforceable against
Seller in
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accordance with its terms, except to the extent that
enforcement hereof may be limited by (x) bankruptcy,
insolvency, reorganization, moratorium or other similar
laws now or hereafter in effect and (y) general principles
of equity (regardless of whether enforceability is
considered in a proceeding at law or in equity).
Such opinion may express its reliance as to factual matters
on, among other things specified in such opinion, the representations
and warranties made by, and on certificates or other documents furnished
by officers of, Seller.
In rendering the opinions expressed above, such counsel may
limit such opinions to matters governed by the laws of the State of New
York and the United States to the extent specifically referred to; and
(vi) such other certificates of Seller's officers or others
and such other documents to evidence fulfillment of the conditions set
forth in this Agreement as Depositor or its counsel may reasonably
request.
5. Seller's Conditions to Closing. The obligations of
Seller under this Agreement shall be subject to the satisfaction, on the
Closing Date, of the following conditions:
(a) Each of the obligations of Depositor required to be
performed by it on or prior to the Closing Date pursuant to the terms of
this Agreement shall have been duly performed and complied with in all
material respects and no event shall have occurred with respect to
Depositor which, with notice or the passage of time, would constitute a
material default under this Agreement, and Seller shall have received
certificates to that effect signed by authorized officers of Depositor.
(b) Seller shall have received all of the following closing
documents, in such forms as are agreed upon and reasonably acceptable to
Seller and Depositor, duly executed by all signatories other than Seller,
as required pursuant to the respective terms thereof:
(i) an officer's certificate of Depositor, dated as of the
Closing Date, with the resolutions of Depositor authorizing the
transactions set forth therein, together with copies of the charter,
by-laws and certificate of good standing dated as of a recent date of
Depositor; and
(ii) such other certificates of its officers or others and
such other documents, including an opinion of counsel to Depositor and
to the Trustee, to evidence fulfillment of the conditions set forth in
this Agreement as Seller or its counsel may reasonably request.
6. Representations and Warranties of Seller.
(a) Seller represents and warrants to Depositor as of the
date hereof as follows:
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(i) Seller is duly organized, validly existing and in good
standing under the laws of the State of Delaware. Seller has conducted
and is conducting its business so as to comply in all material respects
with all applicable statutes and regulations of regulatory bodies or
agencies having jurisdiction over it, except where the failure so to
comply would not have a materially adverse effect on the performance by
Seller of this Agreement, and there is no charge, investigation, action,
suit or proceeding before or by any court, regulatory authority or
governmental agency or body pending or, to the knowledge of Seller,
threatened, which is reasonably likely to materially and adversely
affect the performance by Seller of this Agreement or the consummation
of transactions contemplated by this Agreement.
(ii) Neither the execution and delivery by Seller of this
Agreement, nor the compliance by Seller with the provisions hereof, nor
the consummation by Seller of transactions contemplated by this
Agreement will (I) conflict with or result in a breach of, or constitute
a default or result in the acceleration of any obligations under, the
certificate of formation or operating agreement of Seller or, after
giving effect to the consents or the taking of the actions contemplated
by clause (II) of this subparagraph (ii), any of the provisions of any
law, governmental rule, regulation, judgment, decree or order binding on
Seller or its properties or any of the provisions of any material
indenture or mortgage or any other material contract or instrument to
which Seller is a party or by which it or any of its properties is bound
or result in the creation or imposition of any lien, charge or
encumbrance upon any of its property pursuant to the terms of any such
indenture, mortgage, contract or other instrument (other than pursuant
to this Agreement) or (II) require the consent of or notice to, or any
filing with, any person, entity or governmental body, which has not been
obtained or made by Seller, except where, in any of the instances
contemplated by clause (I) above or this clause (II), the failure to do
so will not have a material adverse effect on any transactions relating
to the sale of the Mortgage Loans by Seller.
(iii) The execution and delivery by Seller of this
Agreement, and the consummation of transactions contemplated by this
Agreement on the terms set forth herein, have been duly authorized by
all necessary limited liability company action on the part of Seller and
are within the limited liability company power of Seller, and this
Agreement has been duly executed and delivered by Seller and constitutes
a legal, valid and binding instrument, enforceable against Seller in
accordance with its terms, subject to applicable bankruptcy,
reorganization, insolvency, moratorium and other laws of general
applicability relating to or affecting the enforcement of creditors'
rights generally, and to general principles of equity and the discretion
of the court (regardless of whether enforcement of such remedies is
considered in a proceeding in equity or at law).
(iv) No consent, approval, authorization or order of,
registration or filing with, or notice to any federal, state or local
governmental authority or court that has not been obtained, made or
given is required in connection with the execution, delivery and
performance of this Agreement by Seller.
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(v) Except as set forth on Schedule V hereto, the
representations and warranties contained in Exhibit A hereto are true
and correct in all material respects as of the date hereof.
7. Cure and Repurchase Obligations of Seller. Each of the
representations and warranties contained in or required to be made by Seller
pursuant to Section 6 of this Agreement shall survive the sale of the Mortgage
Loans and the Ritz-Carlton REMIC Asset and shall continue in full force and
effect, subject to Section 14 of this Agreement, notwithstanding any
restrictive or qualified endorsement on the mortgage notes and notwithstanding
subsequent termination of this Agreement or the Pooling and Servicing
Agreement. The representations and warranties contained in or required to be
made by Seller pursuant to Section 6 of this Agreement shall not be impaired
by any review or examination of the Mortgage Files or other documents
evidencing or relating to the Mortgage Loans and the Ritz-Carlton REMIC Asset
or any failure on the part of Depositor to review or examine such documents
and shall inure to the benefit of any initial transferee of the Mortgage Loans
and the Ritz-Carlton REMIC Asset from Depositor including, without limitation,
the Trustee for the benefit of the Holders of the Certificates.
Upon discovery of any Defect, as defined herein, in a
Mortgage File, Depositor or its assignee shall promptly notify Seller in
writing of such Defect and request that Seller cure such Defect within 90 days
from the date Seller was notified of such Defect; provided, however, that if
such Defect would cause such Mortgage Loan to be other than a "qualified
mortgage" under Section 860G(a)(3) of the Code, then such cure shall be within
90 days of discovery of such Defect. A document in the Mortgage File shall be
deemed to have a "Defect" if (a) any document required to be included in the
Mortgage File is not in the possession of the Custodian, on behalf of the
Trustee, within the time required to be delivered pursuant to this Agreement or
(b) such document has not been properly executed or is otherwise defective on
its face; provided, however, that a document shall not be deemed to have a
Defect if such Defect is caused by the failure by Depositor to execute such
document after having been directed by Seller to execute such document. If
Seller does not correct or cure such Defect within such period, Seller shall
purchase such Mortgage Loan or the Ritz-Carlton REMIC Asset from the Trust Fund
at the Purchase Price pursuant to Section 2.03 of the Pooling and Servicing
Agreement.
Within 90 days of the receipt of written notice by Seller of
a breach (a "Breach") of any of the representations, warranties or covenants of
Seller with respect to the Mortgage Loans or the Ritz-Carlton REMIC Asset set
forth in Exhibit A to this Agreement (or, if such Breach would cause the
Mortgage Loan to be other than a "qualified mortgage" under Section 860G(a)(3)
of the Code, within 90 days of discovery of the Breach) which materially and
adversely affects either (i) the interests of Depositor or the
Certificateholders in the related Mortgage Loan or the Ritz-Carlton REMIC Asset
or (ii) the value of the related Mortgage Loan, Seller shall cure such Breach
and, if Seller does not correct or cure such Breach within such period, or if
such Breach cannot be so cured, then Seller shall purchase the affected
Mortgage Loan or the Ritz-Carlton REMIC Asset at the Purchase Price pursuant to
Section 2.03 of the Pooling and Servicing Agreement. If Seller is required to
repurchase any Mortgage Loan that is part of a Mortgage Group (as defined
herein), Seller shall also be required to repurchase the remaining Mortgage
Loans in such Mortgage Group. For purposes of this paragraph, a "Mortgage
Group" is any group of Mortgage Loans identified as a Mortgage Group on
Schedule III to this Agreement.
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The Purchase Price for any repurchased Mortgage Loan or the
Ritz-Carlton REMIC Asset shall be payable to Depositor or, subsequent to the
assignment of the Mortgage Loans to the Trustee, the Trustee as its assignee,
by wire transfer of immediately available funds to the account designated by
Depositor or its assignee, and Depositor or its assignee, upon receipt of such
funds, shall promptly release the related Mortgage File or cause it to be
released, to Seller and shall execute and deliver such instruments of transfer
or assignment, in each case without recourse, as shall be necessary to vest in
Seller title to any Mortgage Loan or the Ritz-Carlton REMIC Asset released
pursuant hereto. The Depositor or the Servicer, as applicable, shall deliver to
Seller an officer's certificate setting forth the calculation of the Purchase
Price.
7A. Additional Obligations of the Seller.
(a) With respect to each Servicer Remittance Date, if any, on
which the Servicer makes a Yield Protection Payment Advance pursuant to
Section 4.03(g) of the Pooling and Servicing Agreement, the Seller shall
reimburse the Servicer for such Yield Protection Payment Advance, in
immediately available funds wired to the account specified by the Servicer
in a written notice to the Seller, specifying the amount of such Yield
Protection Payment Advance and the Loan with respect to which it was made.
(b) With respect to the Ritz-Carlton REMIC Asset, the Seller
shall indemnify the Trustee on behalf of the Certificateholders, as
assignee of this Agreement, for any and all withholding taxes imposed on
the Trust Fund by the Mexican Government on account of payments on the
Ritz-Carlton REMIC Asset, but only to the extent that such withholding
taxes are in excess of the payment obligation of the Ritz-Carlton Borrower
with respect thereto under the related Note.
(c) The obligations of Credit Suisse First Boston as
Guarantor of the Seller's obligation to repurchase Mortgage Loans pursuant
to Section 7 of this Agreement shall not be transferred except to an
affiliate:
(i) having a long-term debt rating with Moody's Investors
Service, Inc., Standard & Poor's Rating Service, and Fitch IBCA, both
before and after giving effect to such transfer, at least equal to that
of the Guarantor immediately prior to such transfer; and
(ii) having net assets equal to at least fifty percent
(50%) of the net assets of the Guarantor as shown on the most recent
annual, semi-annual or quarterly balance sheet of the Guarantor
immediately prior to such transfer.
8. Representations and Warranties of Depositor. Depositor
hereby represents and warrants to Seller as of the date hereof, as follows:
(a) Depositor is duly organized and is validly existing as
a corporation in good standing under the laws of the State of Delaware,
with full corporate power and authority to own its assets and conduct
its business as it is conducted, and is duly qualified as a foreign
corporation in good standing in all jurisdictions in which the ownership
or lease of its property or the conduct of its business requires such
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qualification (except where the failure to qualify would not have a
materially adverse effect on the consummation of any transactions
contemplated by this Agreement).
(b) The execution and delivery by Depositor of this
Agreement and the performance of Depositor's obligations hereunder are
within the corporate power of Depositor and have been duly authorized,
executed and delivered by Depositor and neither the execution and
delivery by Depositor of this Agreement nor the compliance by Depositor
with the provisions hereof, nor the consummation by Depositor of the
transactions contemplated by this Agreement, will (i) conflict with or
result in a breach of, or constitute a default under, the certificate of
incorporation or by-laws of Depositor or, after giving effect to the
consents or taking of the actions contemplated by clause (ii) of this
paragraph (b), any of the provisions of any law, governmental rule,
regulation, judgment, decree or order binding on Depositor or its
properties, or any of the provisions of any material indenture or
mortgage or any other material contract or other instrument to which
Depositor is a party or by which it is bound or result in the creation
or imposition of any lien, charge or encumbrance upon any of its
properties pursuant to the terms of any such indenture, mortgage,
contract or other instrument (other than pursuant to the Pooling and
Servicing Agreement) or (ii) require the consent of or notice to, or any
filing with any person, entity or governmental body, which has not been
obtained or made by Depositor, except where, in any of the instances
contemplated by clause (i) above or this clause (ii), the failure to do
so will not have a material and adverse effect on the consummation of
any transactions contemplated by this Agreement.
(c) This Agreement has been duly executed and delivered by
Depositor and this Agreement constitutes a legal, valid and binding
instrument, enforceable against Depositor in accordance with its terms,
subject, as to the enforcement of remedies, to applicable bankruptcy,
reorganization, insolvency, moratorium and other laws affecting the
rights of creditors generally and to general principles of equity and
the discretion of the court (regardless of whether enforcement of such
remedies is considered in a proceeding in equity or at law) and, as to
rights of indemnification hereunder, subject to limitations of public
policy under applicable securities laws.
(d) There is no litigation, charge, investigation, action,
suit or proceeding by or before any court, regulatory authority or
governmental agency or body pending or, to the knowledge of Depositor,
threatened against Depositor the outcome of which could be reasonably
expected to materially and adversely affect the consummation of any
transactions contemplated by this Agreement.
9. Survival of Certain Representations, Warranties and
Covenants. The respective representations and warranties set forth in or made
pursuant to this Agreement, and the respective obligations of the parties
hereto under Sections 7 and 11 of this Agreement, will remain in full force
and effect, regardless of any investigation or statement as to the result
thereof made by or on behalf of any party and will survive payment for the
various transfers referred to herein and delivery of the Certificates or
termination of this Agreement.
10. Accountant's Letters. On or before the Closing Date, E&Y
Kenneth Leventhal Real Estate Group will have reviewed the characteristics of
the Mortgage Loans
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described in (a) the Mortgage Loan Schedule attached hereto and set forth as an
exhibit to the Pooling and Servicing Agreement and (b) the computer disk
prepared by Seller and provided to Depositor and will compare those
characteristics to, and ensure their agreement with (i) the description of the
Mortgage Loans and the Ritz-Carlton REMIC Asset contained in the Prospectus
Supplement and the Memorandum, respectively; (ii) original documentation and
files of Seller maintained with respect to each Mortgage Loan; and (iii) if
applicable, information with respect to such Mortgage Loans contained in the
report on Form 8-K to be filed by Depositor with the Commission in connection
with the offering of the Certificates. Seller will cooperate with Depositor and
E&Y Kenneth Leventhal Real Estate Group in making available all information and
taking all steps reasonably necessary to permit such accountants to complete
the review set forth in this Section 10 and to deliver the letters required of
them under the Underwriting Agreement and the Certificate Purchase Agreement.
11. Expenses; Recording Costs. Seller agrees to pay to
Depositor or its designee all recording and filing fees incurred in connection
with the recording or filing of the documents listed in Section 3 of this
Agreement.
12. Notices. All communications hereunder will be in writing,
and, (a) if sent to Depositor, will be mailed, delivered or telecopied and
confirmed to it at Eleven Madison Avenue, 5th Floor, New York, New York 10010,
Attention: Allan J. Baum, Telecopy No.: (212) 325-8162; and (b) if sent to
Seller, will be mailed, delivered or telecopied to it at Eleven Madison
Avenue, New York, New York 10010, Attention: President, Telecopy No.: (212)
325-8160.
13. Examination of Mortgage Files. Upon reasonable notice,
Seller, prior to the Closing Date, will make the Mortgage Files available to
Depositor or its agent for examination during normal business hours at Seller's
offices or such other location as shall otherwise be agreed upon by Depositor
and Seller. The fact that Depositor or its agent has conducted or has failed to
conduct any partial or complete examination of the Mortgage Files shall not
affect the rights of Depositor or the Trustee (for the benefit of the
Certificateholders) to demand cure, repurchase, or other relief as provided
herein.
14. Successors. This Agreement shall inure to the benefit of
and shall be binding upon Seller and Depositor and their respective successors
and legal representatives, and nothing expressed in this Agreement is intended
or shall be construed to give any other person any legal or equitable right,
remedy or claim under or in respect of this Agreement, or any provisions herein
contained, this Agreement and all conditions and provisions hereof being
intended to be and being for the sole and exclusive benefit of such persons and
for the benefit of no other person except that (a) the indemnities of Seller
contained in that certain Indemnification Agreement dated June 18, 1998 among
Seller, Paine Webber Real Estate Securities, Inc., Depositor and the
Underwriters, subject to all limitations therein contained, shall also be for
the benefit of the officers and directors of Depositor, the Underwriters and
the Initial Purchasers and any person or persons who control Depositor, the
Underwriters and the Initial Purchasers within the meaning of Section 15 of the
Securities Act or Section 20 of the 1934 Act, and (b) the rights of Depositor
pursuant to this Agreement, subject to all limitations herein contained,
including those set forth in Section 9 of this Agreement, may be assigned to
the Trustee as may be required to effect the purposes of the Pooling and
Servicing Agreement and, upon such assignment,
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the Trustee shall succeed to such rights of Depositor hereunder. No owner of a
Certificate issued pursuant to the Pooling and Servicing Agreement shall be
deemed a successor because of such ownership.
15. Governing Law. THIS AGREEMENT SHALL BE GOVERNED AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO
AGREEMENTS TO BE MADE AND PERFORMED ENTIRELY WITHIN SUCH STATE WITHOUT GIVING
EFFECT TO CHOICE OF LAW PRINCIPLES.
16. Severability. If any provision of this Agreement shall be
prohibited or invalid under applicable law, this Agreement shall be ineffective
only to such extent, without invalidating the remainder of this Agreement.
17. Further Assurances. Depositor and Seller agree to execute
and deliver such instruments and take such actions as the other parties may,
from time to time, reasonably request in order to effectuate the purpose and to
carry out the terms of this Agreement.
18. Counterparts. This Agreement may be executed in
counterparts (and by each of the parties hereto on different counterparts),
each of which when so executed and delivered will be an original, and all of
which together will be deemed to constitute but one and the same instrument.
19. Treatment as Security Agreement. It is the express intent
of the parties hereto that the conveyance of the Mortgage Loans and the
Ritz-Carlton REMIC Asset by Seller to Depositor as provided in this Agreement
be, and be construed as, a sale of the Mortgage Loans and the Ritz-Carlton
REMIC Asset by Seller to Depositor. It is, further, not the intention of the
parties that such conveyance be deemed a pledge of the Mortgage Loans and the
Ritz-Carlton REMIC Asset by Seller to Depositor to secure a debt or other
obligation of Seller. However, in the event that, notwithstanding the intent
of the parties, the Mortgage Loans and the Ritz-Carlton REMIC Asset are held
to be property of Seller or if for any reason this Agreement is held or deemed
to create a security interest in the Mortgage Loans and the Ritz-Carlton REMIC
Asset, then:
(a) this Agreement shall hereby create a security agreement
within the meaning of Articles 8 and 9 of the Uniform Commercial Code in
effect in the applicable state;
(b) the conveyance provided for in this Agreement shall
hereby grant from Seller to Depositor a security interest in and to all of
Seller's right, title, and interest, whether now owned or hereafter
acquired, in and to:
(i) all accounts, contract rights, general intangibles,
chattel paper, instruments, documents, money, deposit accounts,
certificates of deposit, goods, letters of credit, advices of credit and
investment property consisting of, arising from or relating to any of
the property described in the Mortgage Loans and the Ritz-Carlton REMIC
Asset, including the related Mortgage Notes, Mortgages and title, hazard
and primary mortgage insurance policies identified on the Mortgage
13
<PAGE>
Loan Schedule, including all replacement Mortgage Loans, and all
distributions with respect thereto payable on and after the Cut-off
Date;
(ii) all accounts, contract rights, general intangibles,
chattel paper, instruments, documents, money, deposit accounts,
certificates of deposit, goods, letters of credit, advices of credit and
investment property arising from or by virtue of the disposition of, or
collections with respect to, or insurance proceeds payable with respect
to, or claims against other persons with respect to, all or any part of
the collateral described in (i) above (including any accrued discount
realized on liquidation of any investment purchased at a discount); and
(iii) all cash and non-cash proceeds of the collateral
described in (i) and (ii) above;
(c) The possession by Depositor or its assignee of the
Mortgage Notes, the Mortgages and such other goods, letters of credit,
advices of credit, instruments, money, documents, chattel paper or
certificated securities shall be deemed to be possession by the secured
party or possession by a purchaser or a person designated by him or her,
for purposes of perfecting the security interest pursuant to the Uniform
Commercial Code (including, without limitation, Sections 9-305 and 9-115
thereof) as in force in the relevant jurisdiction; and
(d) notifications to persons holding such property, and
acknowledgments, receipts, confirmations from persons holding such
property, shall be deemed to be notifications to, or acknowledgments,
receipts or confirmations from, financial intermediaries, bailees or
agents of, or persons holding for (as applicable), Depositor or its
assignee for the purpose of perfecting such security interest under
applicable law. Seller, Depositor or their assignee at the direction of
Seller shall, to the extent consistent with this Agreement, take such
actions as may be necessary to ensure that, if this Agreement were deemed
to create a security interest in the Mortgage Loans and the Ritz-Carlton
REMIC Asset and the proceeds thereof, such security interest would be a
perfected security interest of first priority under applicable law and
will be maintained as such throughout the term of this Agreement. In
connection herewith, Depositor and its assignee shall have all of the
rights and remedies of a secured party and creditor under the Uniform
Commercial Code as in force in the relevant jurisdiction.
20. Recordation of Agreement. To the extent permitted by
applicable law, this Agreement is subject to recordation following the Closing
Date 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
Seller at Seller's expense at the direction of Depositor accompanied by an
Opinion of Counsel to the effect that such recordation materially and
beneficially affects the interests of Depositor.
* * *
14
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this
Mortgage Loan Purchase Agreement to be duly executed and delivered as of this
11th day of June 1998.
CREDIT SUISSE FIRST BOSTON MORTGAGE
CAPITAL LLC,
as Seller
By: /s/ Debra Huddleston
---------------------------
Name: Debra Huddleston
Title: Vice President
CREDIT SUISSE FIRST BOSTON MORTGAGE
SECURITIES CORP.,
as Depositor or Purchaser
By: /s/ Allan J. Baum
---------------------------
Name: Allan J. Baum
Title: Vice President
<PAGE>
SCHEDULE I
SCHEDULE OF TRANSACTION TERMS
This Schedule of Transaction Terms is appended to and incorporated by
reference in the Mortgage Loan Purchase Agreement (the "Agreement"), dated as
of June 11, 1998, between Credit Suisse First Boston Mortgage Capital LLC
("Seller") and Credit Suisse First Boston Mortgage Securities Corp.
("Depositor" or "Purchaser"). Capitalized terms used herein without definition
have the meanings given them in or by reference in the Agreement or, if not
defined in the Agreement, in the Pooling and Servicing Agreement, the
Underwriting Agreement or the Certificate Purchase Agreement, as the case may
be.
"Borrower" means the borrower under the Mortgage Loan.
"Certificate Purchase Agreement" means the Certificate Purchase
Agreement, dated June 18, 1998, between Depositor and the Initial Purchasers.
"Certificates" means each class of the Credit Suisse First Boston
Mortgage Securities Corp. Commercial Mortgage Pass-Through Certificates, Series
1998-C1.
"Closing Date" means June 25, 1998.
"Code" means the Internal Revenue Code of 1986, as amended.
"Cut-off Date" means June 11, 1998.
"Environmental Report" means the environmental audit report with
respect to each Mortgaged Property delivered to Seller in connection with the
related Mortgage, if any.
"Initial Purchasers" means Credit Suisse First Boston Corporation and
PaineWebber Incorporated.
"Investment Officer" means any employee of Seller designated by Seller
as an "investment officer" or whose title includes the words "investment
officer."
"Loan Agreement" means, with respect to any Mortgage Loan or the
Ritz-Carlton REMIC Asset, the loan agreement, if any, between the Originator
and the Borrower, pursuant to which such Mortgage Loan was made.
"Memorandum" means the Private Placement Memorandum dated June 18,
1998, describing certain classes of the Certificates.
"Mortgage Loan Pool" means the pool of Mortgage Loans, which are the
primary assets of the Trust Fund.
"Mortgage Loan Purchase Price" means the amount described in Section 2
of the Agreement.
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"Mortgage Loans" means the mortgage loans to be sold to Depositor
pursuant to the Agreement, specifically identified in the Mortgage Loan
Schedule to the Agreement.
"Offered Certificates" means the Class A-1A, Class A-1B, Class A-2MF,
Class A-X, Class B, Class C, Class D and Class E Certificates.
"Originator" means any institution which originated a Mortgage Loan
for a related Borrower.
"Pooling and Servicing Agreement" means the Pooling and Servicing
Agreement creating the Trust Fund and the interests therein, dated as of June
11, 1998, among the Servicer, the Special Servicer, Depositor and the Trustee,
including the Mortgage Loan Schedule annexed thereto.
"Prospectus" means the Prospectus, dated June 11, 1998.
"Prospectus Supplement" means the Prospectus Supplement, dated June
18, 1998, relating to the Offered Certificates.
"Ritz-Carlton REMIC Asset" means the beneficial ownership interest in
a REMIC, the primary asset of which is the Ritz-Carlton Loan and which is sold
to the Depositor pursuant to this Agreement.
"Underwriters" means Credit Suisse First Boston Corporation and
PaineWebber Incorporated.
"Underwriting Agreement" means the Underwriting Agreement, dated June
18, 1998, between Depositor and the Underwriters.
I-2
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SCHEDULE II
MORTGAGE LOAN SCHEDULE
(previously filed with Rule 424(b)(5) filing)
II-1
<PAGE>
SCHEDULE III
MORTGAGE LOANS CONSTITUTING MORTGAGE GROUPS
[None]
III-1
<PAGE>
SCHEDULE IV
MORTGAGE LOANS WITH LOST NOTES
Loan No. Property Name
143 Boynton Medical Arts Center
IV-1
<PAGE>
SCHEDULE V
EXCEPTIONS TO SELLER'S REPRESENTATIONS AND WARRANTIES
Loan 2 - Ritz Carlton
Rep. # (viii):
Except that with respect to Loan #2 - Ritz Carlton, Cancun, Mexico, the
Mortgage Loan is secured by a Guaranty Trust, an alternative means of
encumbering real property in Mexico that affords the lender a means of
foreclosing upon the Mortgaged Property through a trustee and without resorting
to the Mexican court system. See the section entitled "Certain Characteristics
of the Mortgage Loans - Significant Mortgage Loans - The Ritz-Carlton Loan" in
the Prospectus Supplement for further details.
Rep# (xi):
Except that with respect to Loan #2 - Ritz Carlton, Cancun, Mexico, the
representation is true and correct except that the Mortgage Loan is secured by
a Guaranty Trust as provided under Mexican law and, as is customary in
connection with loans secured by real estate in Mexico, title insurance was not
obtained.
Rep# (xxxiv):
Except that with respect to Loan #2 - Ritz Carlton, Cancun, Mexico, the
representation is true and correct except that the Borrower is a Mexican
corporation.
Loan #10 - Alexandria Single Tenant Portfolio
Rep.# (xxv)
Except that with respect to Loan #10 - Alexandria Single Tenant Portfolio, the
representation is true and correct except that an adjacent property contains a
potentially leaking underground storage tank. The Phase I environmental report
revealed no evidence of contamination on the Mortgaged Property. The Borrower
is obligated under the Mortgage Loan documents to obtain, at its cost, soil and
boring samples within 24 months of the date of the closing of the Loan and a
"no further action" letter from the appropriate governmental authority within
18 months of the date of the closing of the Loan.
Rep.# (xlvii):
Except that with respect to Loan #10 - Alexandria Single Tenant Portfolio, the
representation is true and correct except that the University of Washington,
tenant in the University of Washington Building property, in connection with a
total condemnation or a partial condemnation that substantially interferes with
Tenant's use and occupancy condemnation has a right to receive a portion of the
condemnation award equal to the value of its leasehold estate, except in the
event that the State of Washington condemns the Mortgaged Property for use by
the University of Washington, the Tenant would not be entitled to any of the
condemnation award. A guaranty was obtained from Alexandria Real Estate
Equities, Inc., a real estate investment trust and partner of Borrower to cover
amounts paid to the Tenant in connection with a condemnation.
Loan # 13 - Holiday Inn - Denver Downtown
Rep.# (xxix)(J):
Except that with respect to Loan #13 - Holiday Inn - Denver Downtown, the
representation is true and correct except that the ground lessor has the right
to hold and disburse any insurance proceeds or condemnation awards as repair
and restoration of the Mortgaged Property progresses.
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Loan 18 - Pantzer Portfolio
Rep.# (xiii):
Except that with respect to Loan #18 - Pantzer Portfolio, the representation is
true and correct except that on June 4, 1998, a fire at the Foxfire Apartments
property damaged four apartment units and several other units incurred water
and smoke damage. The cost of repairing the damage is, except to the extent of
the deductible, covered by insurance.
Loan 32 - Best Buy Dist. Center, Staunton, Virginia
Rep.# (xx(n))
Except with respect to Loan No. 32, the representation is true and correct
except that the Balloon Payment is approximately 52% of the original principal
balance of such Credit Lease Loan.
Loan 44 - Chateau Marmont
Rep.# (xxi)
Except that with respect to Loan # 44 - Chateau Marmont, the representation is
true and correct except that 10 months of business interruption insurance is
required to be maintained.
Loan 47 - Briarcliff
Rep.# (xxxv):
Except that with respect to Loan #47 - Briarcliff, the representation is true
and correct except that the Borrower has in place a credit line of up to
$2,500,000 that may be utilized to fund expenses for ownership and operation of
the Mortgaged Property, which credit line is secured by a mortgage subordinated
to the lien of the Mortgage.
Loan 53 - St. George Tower
Rep# (xxv)
Except that with respect to Loan #53 - St. George Tower, the representation is
true and correct except that asbestos is present on the Mortgaged Property.
Borrower has covenanted to remove all asbestos on or before the date that is
nine (9) months from the closing of the Mortgage Loan.
Loan #57 - British Woods
Rep.# (xiii):
Except that with respect to Loan #57 - British Woods, the representation is
true and correct except that on March 18, 1998, a fire damaged two units and a
portion of the roof in one of the 25 buildings. The total estimated cost of
repairing the damage is $59,073 and this amount, less a $2,500 deductible, is
covered by insurance.
Rep.# (xxxv):
Except that with respect to Loan #57 - British Woods, the representation is
true and correct except that the Mortgage Loan Seller holds a wrap mortgage on
the Mortgaged Property. The Mortgage Loan Seller has agreed in writing to
subordinate the wrap mortgage to the lien of the Mortgage and to stand still
and not commence any enforcement action under the wrap mortgage until the debt
secured by the Mortgage is paid in full.
Rep.# (xlii):
Except that with respect to Loan #57 - British Woods, the representation is
true and correct except that a former general partner of the Borrower has filed
a claim in New Jersey for payment of a debt obligation aggregating
approximately $200,000. The Borrower has filed a motion to dismiss. The
Mortgage Loan Seller does not believe that this litigation will have a material
adverse effect on the ability of the Borrower to repay the Mortgage Loan.
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Loan 59 - Geddes Lake
Rep.# (xxxv):
Except that with respect to Loan #59 - Geddes Lake, the representation is true
and correct except that the Borrower has in place a credit line of up to
$500,000 that may be increased to $1,000,000 and may be utilized to fund
expenses for ownership and operation of the Mortgaged Property, which credit
line is secured by a mortgage that is subordinated to the lien of the Mortgage.
Rep.# (xxi)
Except that with respect to Loan #59 - Geddes Lake, the representation is true
and correct except that 6 months of business interruption insurance is required
to be maintained.
Loan 60 - NCB Bell Apartments
Rep.# (xxxv):
Except that with respect to Loan #60 - NCB Bell Apartments, the representation
is true and correct except that the Borrower has in place a credit line of up
to $500,000 that may be utilized to fund expenses for ownership and operation
of the Mortgaged Property, which credit line is secured by a mortgage
subordinated to the lien of the Mortgage.
Loan 66 - Bryn Mawr Ridge Apartments
Rep.# (xxxv):
Except that with respect to Loan #66- Bryn Mawr Ridge Apartments, the
representation is true and correct except that the Borrower has in place a
credit line of up to $2,500,000 that may be utilized to fund expenses for
ownership and operation of the Mortgaged Property, which credit line is secured
by a mortgage that is subordinated to the lien of the Mortgage. An additional
mortgage on the Mortgaged Property in the amount of $2,500,000.00 granted to
the sponsor of the co-operative apartment building has been subordinated to the
lien of the Mortgage and the holder of the mortgage has agreed to standstill
and not commence enforcement proceedings until the Mortgage Loan has been paid
in full.
Loan 89- Laurelton Gardens
Rep.# (xxxv):
Except that with respect to Loan #89- Laurelton Gardens, the representation is
true and correct except that the Borrower has in place a credit line of up to
$300,000 that may be utilized to fund expenses for ownership and operation of
the Mortgaged Property, which credit line is secured by a mortgage that is
subordinated to the lien of the Mortgage.
Loan #101 - Yorktown Apartments and Townhouses
Rep.# (xxxv):
Except that with respect to Loan #101 - Yorktown Apartments and Townhouses, the
representation is true and correct except that the Mortgage Loan Seller holds a
wrap mortgage on the Mortgaged Property. The Mortgage Loan Seller has agreed in
writing to subordinate the wrap mortgage to the lien of the Mortgage and to
stand still and not commence any enforcement action under the wrap mortgage
until the debt secured by the Mortgage is paid in full.
Rep.# (xlii):
Except that with respect to Loan #101 - Yorktown Apartments and Townhomes, the
representation is true and correct except that a former general partner of the
Borrower has filed a claim in New Jersey for payment of a debt obligation
aggregating approximately $200,000. The Borrower has filed a motion to dismiss.
The Mortgage Loan Seller does not believe that this litigation will have a
material adverse effect on the ability of the Borrower to repay the Mortgage
Loan.
Loan #146 - Brentwood Mobile Home Park
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<PAGE>
Rep.# (xxxiv):
Except that with respect to Loan #146 - Brentwood Mobile Home Park, the
representation is true and correct except that the Borrower is composed of
individuals.
Loan 163 - Kmart, Sikeston, Missouri
Rep.# (xlvii)
Except with respect to Loan # 163 - Kmart, Sikeston, Missouri, the
representation is true and correct except that the sole tenant, Kmart, has the
right to receive and disburse casualty insurance proceeds, provided, however,
that such proceeds must be applied to restoration of the Mortgaged Property.
Loan 218 - Manhattan Brewery
Rep.# (xxxiv):
Except with respect to Loan #218 - Manhattan Brewery, the representation is
true and correct except that the Borrower is not a single-purpose entity.
Loan # 234 - Knoxville Microtel
Rep.# (xxix)(A):
Except that with respect to Loan #234 - Knoxville Microtel, the representation
is true and correct except that the ground lease was not recorded at the time
of closing. The Borrower is obligated to record the ground lease or a
memorandum thereof within 90 days after the closing of the loan. The ground
lease does not affect the improvements which constitute the hotel, but does
affect some parking spaces.
Loan 319 - East Pine Ridge MHP
Rep.#(xi):
Except that with respect to Loan #319 - East Pine Ridge MHP, the representation
is true and correct except that the Mortgaged Property is subject to a 150-foot
easement. The title insurer has provided an endorsement against damage to
existing improvements and the partners of Borrower have signed an
indemnification of Lender against all damages arising out of the use and
maintenance of the easement.
CREDIT TENANT LOANS
Exceptions to Rep# (xl)(A) applying to multiple loans:
Rep.# (xl)(A):
Except with respect to Loan #s 11 (Elder-Beerman-Ohio), 32 (Best Buy-Staunton,
VA), 77 (Best Buy-Springfield, PA), 81 (Elder-Beerman-Erie, PA), 90 (Best
Buy-Mayfield, OH), 109 (Eagle Foods-Gevena, IL), 117 (Eagle Foods-Moline, IL),
141 (Best Buy-Akron, OH), 150 (Best Buy-Columbia, SC), 161 (Best Buy-Inver
Grove Heights, MN), 181 (Best Buy-LaCrosse, WI), and 246 (CVS - Woodstock, GA),
the representation is true and correct except that a balloon payment is due at
maturity. The Borrower has obtained and is obligated to maintain a residual
value insurance policy from R.V.I. America Insurance Company, which has a
claims paying rating of "A" by Fitch and S&P.
Except with respect to Loan #s 165 (PETsMART Store 157), 172 (PETsMART Store
102), 176 (PETsMART Store 688), 178 (PETsMART Store 475), 179 (PETsMART Store
586), 185 (PETsMART Store 689), 193 (PETsMART Store 685), 196 (PETsMART Store
239), 207 (PETsMART Store 686), 212 (PETsMART Store 648) and 219 (PETsMART
Store 145), the representation is true and correct except that a balloon
payment is due at maturity. The balloon payment is guaranteed by the Tenant,
which is rated "B+" by S&P.
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<PAGE>
Loan 20 - American Restaurant Group
Rep# (xl)(B):
Except with respect to Loan #20 - American Restaurant Group, the representation
is true and correct except that, in the event of a condemnation of an entire
leased premises, the Credit Lease will terminate upon Borrower's receipt of
funds sufficient to defease the amount of the loan allocated to the condemned
premises and the Tenant's rent will abate in an amount equal to the then
current rent allocated to the condemned premises.
Loan 54 - Shemin Nurseries
Rep.# (xl)(F):
Except with respect to Loan #54 - Shemin Nurseries, the representation is true
and correct except that the Tenant may not assign the Credit Lease without the
Lender's approval, which may be withheld for any reason or no reason, except
that the Tenant may assign the Credit Lease to Fleet Capital Corp., a wholly
owned subsidiary of Fleet Financial Group, which is rated "A-" by S&P, without
the Lender's consent.
Loan 81 - Elder-Beerman - Erie, PA
Rep.# (xxv):
Except that with respect to Loan #81 - Elder-Beerman - Erie, PA, the
representation is true and correct except that the Phase I Environmental Report
indicated the presence of asbestos in the building in the form of mastic
beneath the floor tile and building materials associated with a cooling tower
located on the roof. The mastic will be removed in connection with contemplated
building renovations. The Tenant is obligated to develop and implement an
operations and maintenance program to maintain the asbestos on the cooling
tower.
Rep.# (xxix)(K):
Except that with respect to Loan #CL24 - Elder-Beerman - Erie, PA, the
representation is true and correct except that the lessor under the ground
lease is entitled to a portion of any condemnation proceeds equal to the value
of the land and the balance is retained by Tenant and, under the Credit Lease,
paid to the mortgagee.
Rep.# (xl)(B):
Except that with respect to Loan #CL24 - Elder-Beerman - Erie, PA, the
representation is true and correct except that in the event the Tenant under
the Credit Lease ceases to operate continuously for one year, the ground lessor
may purchase the Borrower's interest in the ground lease, but such purchase
shall be subject to the Credit Lease and the Mortgage and must be purchased by
a special purpose entity created by the ground lessor. An endorsement to the
title insurance policy ensures that ground lessor's exercise of the purchase
option shall not adversely affect the validity, priority or enforceability of
the Mortgage and Assignment of Leases and Rents.
Rep.# (xl)(F):
Except that with respect to Loan #CL24 - Elder-Beerman - Erie, PA, the
representation is true and correct except that the Credit Lease provides that
if the Tenant assigns its interest, the Tenant shall remain primarily liable
unless the assignee expressly assumes the Tenant's obligations, both monetary
and non-monetary, in writing, and the assignee has a long-term unsecured debt
rating of at least BBB by Standard & Poor's and Baa2 by Moody's, in which event
the Tenant shall be released from its obligations under the Credit Lease.
Rep.# (xl)(L):
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<PAGE>
Except that with respect to Loan #CL24 - Elder-Beerman - Erie, PA, the
representation is true and correct except that Borrower's interest in the
Mortgaged Property is a leasehold interest pursuant to a ground lease.
Loan 152 - CVS - Stoughton, MA
Rep.# (xl) (A) & (B):
Except with respect to Loan #152 - CVS - Stoughton, MA, the representation is
true and correct except that Tenant's rent abates, in an amount proportional to
the portion of the leased premises that is untenantable, during any period in
which any portion of the leased premises is untenantable.
Rep.# (xl)(C):
Except with respect to Loan #152 - CVS - Stoughton, MA, the representation is
true and correct except that the Borrower has the following obligations under
the Credit Lease: (1) payment of real estate taxes, insurance costs and common
area charges (but Tenant is obligated to reimburse Borrower for these costs),
(2) payment of utility costs for areas not consumed by Tenant, (3) maintenance,
at Borrower's cost, of the structure and exterior areas, (4) construction of a
new roof (a separate reserve has been established with Lender to cover this
expense), (5) repair damage or destruction of the Mortgaged Property (casualty
insurance has been purchased to provide for this event), and (6) ensure that
the structure of the building complies with applicable law (the Tenant is
responsible for ensuring that the physical condition of the leased premises
complies with applicable law). Borrower is obligated to fund, with monthly
payments, a capital reserve account in an amount equal to 200% of the estimated
cost of all of the foregoing obligations except item (1) which is reimbursed by
the Tenant.
Rep.# (xl)(E)
Except with respect to Loan #152 - CVS - Stoughton, MA, the representation is
true and correct except that the Tenant may terminate the Credit Lease in the
event: (1) Borrower or its agents operate a drugstore or other competing use on
land immediately adjacent to the leased premises during the lease term, or (2)
the parking area is reduced below 100 parking spaces for a period of ninety
(90) days. The Mortgage Loan documents contain covenants of Borrower not to
violate the foregoing requirements. In addition, three principals of the
Borrower have executed an indemnification of Lender for losses arising out of
termination of the Credit Lease due to a violation by Borrower of the foregoing
exclusivity covenant and parking covenant.
Rep.# (xl)(G):
Except that with respect to Loan #152 - CVS - Stoughton, MA, the Tenant has
agreed to indemnify Borrower except for the willful, negligent or tortious act
or omission on the part of the Borrower, its agents, contractors or employees.
Rep.# (xl)(L):
Except that with respect to Loan #152 - CVS - Stoughton, MA, the basement of
the leased premises is leased by Borrower until the year 2002 to a former
tenant of the leased premises, after which time the basement will become part
of the premises leased to Tenant.
Loan 171 - Rite Aid - Macon and College Park
Rep# (xl) (A) & (B):
Except that with respect to Loan #171 - Rite Aid - Macon and College Park, the
representation is true and correct except that the Tenant may abate rent if
Borrower violates use exclusivity covenants. The Borrower has covenanted in the
Mortgage Loan documents not to violate the exclusive use covenants. In
addition, a principal of Borrower has indemnified Lender for losses arising out
of a termination by Tenant due to a violation of the exclusive use covenants.
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Rep.# (xl)(C):
Except with respect to Loan # 171 - Rite Aid - Macon and College Park, the
representation is true and correct except that the Borrower is responsible for
the maintenance and repair of the roof, structure and exterior of the leased
premises. Borrower is also responsible for compliance with governmental
regulations requiring any change in the structure of the leased premises and
for any repairs necessitated by faulty construction or Borrower's failure to
maintain the roof, structure and exterior of the leased premises. Borrower is
obligated to fund, with monthly payments, a capital reserve account in an
amount equal to 200% of the estimated cost of the foregoing obligations.
Rep.# (xl)(E):
Except with respect to Loan #171 - Rite Aid - Macon and College Park, the
representation is true and correct except that the Tenant may terminate the
Credit Lease in the event Borrower violates exclusive use covenants. The
Borrower has covenanted in the Mortgage Loan documents not to violate the
exclusive use covenants. In addition, a principal of Borrower has indemnified
Lender for losses arising out of a termination by Tenant due to a violation of
the exclusive use covenants.
Loan 211 - Eckerd's - Ft. Walton, FL
Rep.# (xl)(C):
Except that with respect to Loan 211 - Eckerd's - Ft. Walton, FL, the
representation is true and correct except that the Borrower has the following
obligations under the Credit Lease: (1) provide a 1 year warranty for latent
defects and (2) ensure that the leased premises complies with applicable law
(to the extent of conditions existing prior to the commencement of the Credit
Lease, but not to the extent arising out of the Tenant's use and occupancy).
Borrower is obligated to fund, with monthly payments, a capital reserve account
in an amount equal to 200% of the estimated cost of the foregoing obligations.
Loan 215 - Rite Aid - Washington, MI
Rep.# (xl)(C):
Except that with respect to Loan #215 - Rite Aid, Washington, MI, the
representation is true and correct except the Borrower is obligated under the
Credit Lease to maintain the roof, structure and exterior of the leased
premises, except to the extent repairs are required by acts or omissions of
Tenant, its agents, employees, contractors and licensees. Borrower is obligated
to fund, with monthly payments, a capital reserve account in an amount equal to
200% of the estimated cost of the foregoing obligations.
Rep.# (xl)(E):
Except that with respect to Loan #215 - Rite Aid, Washington, MI, the
representation is true and correct except that the Tenant may terminate the
Credit Lease in the event Borrower violates exclusive use covenants. The
Borrower has covenanted in the Mortgage Loan documents not to violate the
exclusive
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use covenants. In addition, a principal of Borrower has indemnified Lender for
losses arising out of a termination by Tenant due to a violation of the
exclusive use covenants.
Loan 217 - Rite Aid - Melvindale, MI
Rep.# (xl)(C):
Except with respect to Loan #217 - Rite Aid - Melvindale, MI, the
representation is true and correct except that the Borrower is responsible for
the maintenance of the roof, structure and exterior of the leased premises.
Borrower is obligated to fund, with monthly payments, a capital reserve account
in an amount equal to 200% of the estimated cost of the foregoing obligations.
Rep.# (xl)(E):
Except with respect to Loan #217 - Rite Aid - Melvindale, MI, the
representation is true and correct except that the Tenant may terminate the
Credit Lease in the event Borrower violates exclusive use covenants. The
Borrower has covenanted in the Mortgage Loan documents not to violate the
exclusive use covenants. In addition, a principal of Borrower has indemnified
Lender for losses arising out of a termination by Tenant due to a violation of
the exclusive use covenants.
Rep.# (xl)(G):
Except with respect to Loan #217 - Rite Aid - Melvindale, MI, the
representation is true and correct except that the Tenant has agreed to
indemnify Borrower except for losses caused by the negligence or willful acts
or omissions of Borrower, its agents or employees.
Loan 222 - Office Depot - College Township, PA
Rep.# (xxix)(B):
Except that with respect to Loan #222 - Office Depot - College Township, PA,
the representation is true and correct except that the ground lessor may
terminate the ground lease after sixty (60) days notice to Borrower if the
Tenant (i.e. the subtenant under the ground lease) ceases operations and no
assignee or subtenant of Tenant opens for business within 120 days after Tenant
cessation of operations. If the ground lessor elects to so terminate, it must
pay Borrower an amount equal to the unamortized portion of the cost of the
improvements on the leased premises on a 15-year straight-line basis. In
addition, the Credit Lease provides that in the event Tenant's cessation of
business results in the termination of the ground lease, Tenant must pay the
difference between ground lessor's payment to Borrower and the amount necessary
to defease the Mortgage Loan.
Rep.# (xl)(E):
Except with respect to Loan #222 - Office Depot, College Township, PA, the
representation is true and correct except that the Tenant has the right to
terminate the Credit Lease in the event Borrower violates exclusive use
covenants. The Borrower has covenanted in the Mortgage Loan documents not to
violate the exclusive use covenants. In addition, a principal of Borrower has
indemnified Lender for losses arising out of a termination by Tenant due to a
violation of the exclusive use covenants.
Rep.# (xl)(L):
Except that with respect to Loan #222 - Office Depot, College Township, PA, the
representation is true and correct except that Borrower's interest in the
Mortgaged Property is a leasehold interest pursuant to a ground lease.
Loan 239 - Walgreen Co. - Bedford, TX
Rep.# (xl)(C):
Except that with respect to Loan #CL56 - Walgreen Co. - Bedford, TX, the
representation is true and correct except that the Borrower has the following
obligations under the Credit Lease: (1) maintain roof and parking at Borrower's
cost and expense and (2) ensure that the leased premises complies with
applicable law (except to the extent of violations arising out of Tenant's use.
Borrower is obligated to fund, with monthly payments, a capital reserve account
in an amount equal to 200% of the estimated cost of the foregoing obligations.
Rep.# (xl)(E):
Except that with respect to Loan #239 - Walgreen Co. - Bedford, TX, the
representation is true and correct except that the Tenant may terminate the
Credit Lease in the event Borrower violates exclusive use covenants. The
Borrower has covenanted in the Mortgage Loan documents not to violate the
exclusive use covenants. In addition, a principal of Borrower has indemnified
Lender for losses arising out of a termination by Tenant due to a violation of
the exclusive use covenants.
Loan 241 - Eckerd's / Houma, LA
Rep.# (xl)(C):
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Except that with respect to Loan #241 - Eckerd's / Houma, LA, the
representation is true and correct except that the Borrower is obligated to (1)
maintain ingress and egress and ensure that the leased premises complies with
applicable law (except to the extent arising out of Tenant's use and
occupancy), and (2) provide a one-year warranty against defects in material and
workmanship. Borrower is obligated to fund, with monthly payments, a capital
reserve account in an amount equal to 200% of the estimated cost of the
foregoing obligations.
Rep.# (xl)(G):
Except that with respect to Loan #241 - Eckerd's - Ft. Walton, FL, the
representation is true and correct except that Tenant has agreed to indemnify
Borrower except for acts or omissions of the Borrower.
Loan 246 - CVS / Woodstock, GA
Rep.# (xl) (A) & (B):
Except that with respect to Loan #246 - CVS / Woodstock, GA, the representation
is true and correct except that in the event that an impediment to use or
access of parking is not cured by Borrower within ninety (90) days following
Tenant's notice, Tenant may either (a) terminate the Credit Lease or (b) reduce
its rent to 2.5% of Gross Sales (without percentage rent) until the problem is
cured. A principal of Borrower has indemnified Lender for losses arising out of
a termination by Tenant due to an impediment to parking.
Rep.# (xl)(C):
Except that with respect to Loan #246 - CVS / Woodstock, GA, the representation
is true and correct except that the Borrower has the following obligations: (1)
maintain and repair structure, fire sprinkling system and exterior premises,
(2) ensure leased premises complies with Title III of The Americans with
Disabilities Act, (3) restore leased premises following casualty (casualty
insurance has been obtained to provide for this event), (4) repair or restore
leased premises following condemnation if portion not condemned is reasonably
suitable for Tenant's use (condemnation insurance has been obtained to provide
for this event), (5) pay all taxes other than Tenant's personal property taxes
and (6) obtain and pay for all insurance. Tenant is obligated to reimburse
Borrower for taxes and insurance within thirty (30) days of Borrower's demand.
Borrower is obligated to fund, with monthly payments, a capital reserve account
in an amount equal to 200% of the estimated cost of the foregoing obligations.
Rep.# (xl)(E):
Except that with respect to Loan #246 - CVS / Woodstock, GA, the representation
is true and correct except that the Tenant may terminate the Credit Lease if:
(1) Borrower alters the layout of the leased premises so as to adversely affect
the accessibility from the parking area or street, (2) Borrower places
obstructions on the leased premises that are not required by governmental
authorities or (3) construction is conducted on the leased premises that is not
agreed to in writing by Borrower and Lender. In addition, in the event that an
impediment to use or access of parking is not cured by Borrower within ninety
(90) days following Tenant's notice, Tenant may either (a) terminate the Credit
Lease or (b) reduce its rent to 2.5% of Gross Sales (without percentage rent)
until the problem is cured. A principal of Borrower has indemnified Lender for
losses arising out of a termination by Tenant due to such a loss of parking.
The Mortgage Loan documents contain covenants of Borrower not to violate the
foregoing requirements.
Rep.# (xl)(G):
Except that with respect to Loan #246 - CVS - Woodstock, GA, the Tenant has
agreed to indemnify Borrower except for the willful, negligent or tortious act
or omission on the part of the Borrower, its agents, contractors or employees.
Loan 249 - Rite Aid - Auburn Hills, MI
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Rep.# (xl) (A), (B) & (D):
Except that with respect to Loan #249 - Rite Aid - Auburn Hills, MI, the
representation is true and correct except that the Tenant may abate in the
amount of repairs made by Tenant but which are the obligation of Borrower until
Borrower reimburses Tenant for same. Borrower is obligated to fund, with
monthly payments, a capital reserve account in an amount equal to 200% of the
estimated cost of the foregoing obligations.
Rep.# (xl)(C):
Except that with respect to Loan #249 - Rite Aid - Auburn Hills, MI, the
representation is true and correct except that the Borrower has the following
obligations under the Credit Lease: (1) maintain, at its sole cost and expense,
the roof, structure, and exterior of the leased premises, and (2) provide a 1
year warranty against latent defects. Borrower is obligated to fund, with
monthly payments, a capital reserve account in an amount equal to 200% of the
estimated cost of the foregoing obligations.
Rep.# (xl)(E):
Except that with respect to Loan #249 - Rite Aid - Auburn Hills, MI, the
representation is true and correct except that the Tenant may terminate the
Credit Lease in the event Borrower violates exclusive use covenants. The
Borrower has covenanted in the Mortgage Loan documents not to violate the
exclusive use covenants. In addition, a principal of Borrower has indemnified
Lender for losses arising out of a termination by Tenant due to a violation of
the exclusive use covenants.
Rep.# (xl)(G):
Except that with respect to Loan #249 - Rite Aid - Auburn Hills, MI, has agreed
to indemnify Borrower except for losses caused by the negligent or willful acts
or omissions of Borrower, its agents or employees.
Loan 259 - Rite Aid of Ohio, Inc. - Cleveland, OH
Rep.# (xl) (A), (B) & (D):
Except with respect to Loan # 259 - Rite Aid of Ohio, Inc. - Cleveland, OH, the
representation is true and correct except that the Tenant may abate rent: (1)
if there is any substantial interference with access to the Mortgaged Property
for more than 180 days via the main highways or public streets, or (2) if in an
emergency, Tenant performs an obligation of the Borrower for which no
reimbursement is received within 30 days of request. Additionally, the Tenant
may abate rent if the Borrower violates certain exclusive use covenants. The
Borrower has covenanted in the Mortgage Loan documents not to violate the
exclusive use covenants. In addition, a principal of Borrower has indemnified
Lender for losses arising out of a termination by Tenant due to a violation of
the exclusive use covenants.
Rep.# (xl)(C):
Except with respect to Loan # 259 - Rite Aid of Ohio, Inc. - Cleveland, OH, the
representation is true and correct except that the Borrower is responsible for
the maintenance and repair of the roof, the structure and the exterior of the
leased premises. Borrower must also make repairs to interior portions of the
leased premises caused by faulty construction or Borrower's failure to keep the
leased premises in proper repair (a 1 year Implied Warranty Escrow Account has
been funded to provide for such obligations). Borrower is responsible for
compliance with any governmental regulations regarding the roof, structure or
exterior unless caused by Tenant's negligence. Borrower is obligated to fund,
with monthly payments, a capital reserve account in an amount equal to 200% of
the estimated cost of the foregoing obligations.
Rep.# (xl)(G):
Except with respect to Loan # 259 - Rite Aid of Ohio, Inc. - Cleveland, OH, the
representation is true and correct except that, pursuant to the Lease, the
Tenant has agreed to indemnify Borrower except for losses caused by the
negligent or willful acts or omissions of Borrower, its agents or employees.
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Loan 275 - Rite Aid - Auburn, ME
Rep.# (xl)(C) & (D):
Except that with respect to Loan #275 - Rite Aid - Auburn, ME, the
representation is true and correct except that the Borrower has the following
obligations under the Credit Lease: (1) maintain, at its sole cost and expense,
the roof, structure, and exterior of the leased premises, (2) make repairs to
interior structure within one year of lease commencement if necessitated by
faulty construction and (3) make repairs to interior structure if necessitated
by Borrower's failure to maintain the leased premises. Borrower is obligated to
fund, with monthly payments, a capital reserve account in an amount equal to
200% of the estimated cost of the foregoing obligations.
Loan 286 - Rite Aid - Morrow, GA
Rep.# (xl)(C):
Except that with respect to Loan #286- Rite Aid - Morrow, GA, the
representation is true and correct except that the Borrower has the following
obligations under the Credit Lease: (1) maintain roof, structure and exterior
of the leased premises and (2) make repairs to interior walls, ceilings, floors
and floor coverings if necessary because of faulty construction or Borrower's
failure to keep the leased premises in proper repair. Borrower is obligated to
fund, with monthly payments, a capital reserve account in an amount equal to
200% of the estimated cost of the foregoing obligations.
Rep.# (xl)(E):
Except that with respect to Loan #286 - Rite Aid - Morrow, GA, the
representation is true and correct except that the Tenant has the right to
terminate the Credit Lease in the event Borrower violates exclusive use
covenants. The Borrower has covenanted in the Mortgage Loan documents not to
violate the exclusive use covenants. In addition, a principal of Borrower has
indemnified Lender for losses arising out of a termination by Tenant due to a
violation of the exclusive use covenants.
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EXHIBIT A
REPRESENTATIONS AND WARRANTIES OF SELLER
REGARDING THE MORTGAGE LOANS
The Seller represents and warrants with respect to each Mortgage Loan,
as applicable, that as of the date hereof:
(i) Immediately prior to the sale, transfer and assignment to the
Depositor, no Mortgage Note or Mortgage was subject to any assignment (other
than to the Seller), participation or pledge, and the Seller had good and
marketable title to, and was the sole owner of, the Mortgage Loan;
(ii) The Seller has full right and authority to sell, assign and
transfer such Mortgage Loan and the assignment to the Depositor constitutes a
legal, valid and binding assignment of such Mortgage Loan;
(iii) The Seller is transferring such Mortgage Loan free and clear of
any and all liens, pledges, charges or security interests of any nature
encumbering such Mortgage Loan;
(iv) Each related Mortgage Note, Mortgage, Assignment of Leases (if
any) and other agreement executed in connection with such Mortgage Loan is the
legal, valid and binding obligation of the related Borrower, enforceable in
accordance with its terms, except as such enforcement may be limited by
bankruptcy, insolvency, reorganization, moratorium or other laws affecting the
enforcement of creditors rights generally, or by general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law) and to the Seller's knowledge, there is no valid defense,
counterclaim, or right of rescission available to the related Borrower with
respect to such Mortgage Note, Mortgage, Assignment of Leases and other
agreements;
(v) Each related Assignment of Leases creates a valid collateral or
first priority assignment of, or a valid first priority security interest in,
certain rights under the related lease, subject only to a license granted to
the related Borrower to exercise certain rights and to perform certain
obligations of the lessor under such lease, including the right to operate the
related Mortgaged Property; no person other than the related Borrower owns any
interest in any payments due under such lease that is superior to or of equal
priority with the mortgagee's interest therein;
(vi) Each related assignment of Mortgage from the Seller to the
Depositor and related assignment of the Assignment of Leases, if any, or
assignment of any other agreement executed in connection with such Mortgage
Loan from the Seller to the Depositor constitutes the legal, valid and binding
assignment from the Seller to the Depositor, except as such enforcement may be
limited by bankruptcy, insolvency, reorganization, liquidation, receivership,
moratorium or other laws relating to or affecting creditors' rights generally,
or by general principles of equity (regardless of whether such enforceability
is considered in a proceeding in equity or at law);
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(vii) Since origination, and except as set forth in the related
Mortgage File, such Mortgage Loan has not been modified, altered, satisfied,
canceled, subordinated or rescinded, and each related Mortgaged Property has
not been released from the lien of the related Mortgage in any manner which
materially interferes with the security intended to be provided by such
Mortgage;
(viii) Each related Mortgage is a valid and enforceable perfected
first lien on the related Mortgaged Property (subject to the matters described
in clause (xi) below), and such Mortgaged Property is free and clear of any
mechanics' and materialmen's liens which are prior to or equal with the lien of
the related Mortgage, except those which are insured against by a lender's
title insurance policy (as described below);
(ix) The Seller has not taken any action that would cause the
representations and warranties made by each related Borrower in the Mortgage
Loan not to be true;
(x) The Seller has no knowledge that the material representations and
warranties made by each related Borrower in such Mortgage Loan are not true in
any material respect;
(xi) The lien of each related Mortgage is a first priority lien on the
fee or leasehold interest of its related Borrower in the original principal
amount of such Mortgage Loan or allocated loan amount of the portions of the
Mortgaged Property covered thereby (as set forth in the related Mortgage) after
all advances of principal and is insured by an ALTA lender's title insurance
policy (or a binding commitment therefor), or its equivalent as adopted in the
applicable jurisdiction, insuring the Seller, its successors and assigns,
subject only to (a) the lien of current real property taxes, ground rents,
water charges, sewer rents and assessments not yet due and payable, (b)
covenants, conditions and restrictions, rights of way, easements and other
matters of public record, none of which, individually or in the aggregate,
materially interferes with the current use of the Mortgaged Property or the
security intended to be provided by such Mortgage or with the Borrower's
ability to pay its obligations when they become due or the value of the
Mortgaged Property and (c) the exceptions (general and specific) set forth in
such policy, none of which, individually or in the aggregate, materially
interferes with the current general use of the Mortgaged Property or materially
interferes with the security intended to be provided by such Mortgage or with
the related Borrower's ability to pay its obligations when they become due or
the value of the Mortgaged Property; the premium for such policy was paid in
full; such policy was issued by a title insurance company licensed to issue
policies in the state in which the related Mortgaged Property is located and is
assignable to the Depositor and the Trustee without the consent of or any
notification to the insurer, and is in full force and effect upon the
consummation of the transactions contemplated by this Agreement; no claims have
been made under such policy and the Seller has not undertaken any action or
omitted to take any action, and has no knowledge of any such act or omission,
which would impair or diminish the coverage of such policy;
(xii) The proceeds of such Mortgage Loan have been fully disbursed and
there is no requirement for future advances thereunder and the Seller covenants
that it will not make any future advances under the Mortgage Loan to the
related Borrower;
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(xiii) As of the later of the closing date for each Mortgage Loan or
the most recent inspection of the related Mortgaged Property by the Seller,
each related Mortgaged Property is free of any material damage that would
affect materially and adversely the value of such Mortgaged Property as
security for the Mortgage Loan or reserves have been established to remediate
such damage and, as of the closing date for each Mortgage Loan and, to the
Seller's knowledge, as of the date hereof, there is no proceeding pending for
the total or partial condemnation of such Mortgaged Property that would have a
material adverse effect on the value of the Mortgaged Property;
(xiv) The Seller has inspected or caused to be inspected each related
Mortgaged Property within the past 12 months or within three months of
origination of the Mortgage Loan;
(xv) No Mortgage Loan has a shared appreciation feature, any other
contingent interest feature or a negative amortization feature other than the
ARD Loans which may have negative amortization from and after the Anticipated
Repayment Date;
(xvi) Each Mortgage Loan is a whole loan and contains no equity
participation by the Seller or the applicable Originator;
(xvii) The Mortgage Rate (exclusive of any default interest, late
charges, or prepayment premiums) of such Mortgage Loan complied as of the date
of origination with, or is exempt from, applicable state or federal laws,
regulations and other requirements pertaining to usury; and any and all other
requirements of any federal, state or local laws, including, without
limitation, truth-in-lending, real estate settlement procedures, equal credit
opportunity or disclosure laws, applicable to such Mortgage Loan have been
complied with as of the date of origination of such Mortgage Loan;
(xviii) Neither the Seller nor, to the Seller's best knowledge, any
Originator other than the Seller, committed any fraudulent acts during the
origination process of any Mortgage Loan it originated and to the best of the
Seller's knowledge, the origination, servicing and collection of each Mortgage
Loan is in all respects legal, proper and prudent in accordance with customary
industry standards;
(xix) All taxes and governmental assessments that became due and owing
prior to the Closing Date with respect to each related Mortgaged Property have
been paid or an escrow of funds in an amount sufficient to cover such payments
has been established;
(xx) All escrow deposits and payments required pursuant to each
Mortgage Loan are in the possession, or under the control, of the Seller or its
agent and there are no deficiencies in connection therewith and all such
escrows and deposits have been conveyed by the Seller to the Depositor and
identified as such with appropriate detail;
(xxi) Each related Mortgaged Property is insured by a fire and
extended perils insurance policy, issued by an insurer meeting the requirements
of the Pooling and Servicing Agreement, in an amount not less than the
replacement cost and the amount necessary to avoid the operation of any
co-insurance provisions with respect to the related Mortgaged Property; each
related Mortgaged Property is also covered by business interruption insurance
which covers
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a period of not less than 12 months and comprehensive general liability
insurance in amounts generally required by institutional lenders for similar
properties; all premiums on such insurance policies required to be paid as of
the date hereof have been paid; such insurance policies require prior notice to
the insured of termination or cancellation, and no such notice has been
received; such insurance names the Mortgagee under the Mortgage Loan and its
successors and assigns as a named or additional insured; other than the Credit
Lease Loans, each related Mortgage Loan obligates the related Borrower to
maintain all such insurance and, at such Borrower's failure to do so,
authorizes the mortgagee to maintain such insurance at the Borrower's cost and
expense and to seek reimbursement therefor from such Borrower;
(xxii) There is no monetary default, breach, violation or event of
acceleration existing under the related Mortgage Loan. To the Seller's
knowledge, there is no (a) material non-monetary default, breach, violation or
event of acceleration existing under the related Mortgage Loan or (b) event
(other than payments due but not yet delinquent) which, with the passage of
time or with notice and the expiration of any grace or cure period, would and
does constitute a default, breach, violation or event of acceleration;
(xxiii) No Mortgage Loan has been more than 30 days delinquent since
origination and as of the Cut-off Date no Mortgage Loan is 30 or more days
delinquent;
(xxiv) Each related Mortgage contains provisions so as to render the
rights and remedies of the holder thereof adequate for the realization against
the Mortgaged Property of the benefits of the security, including realization
by judicial or, if applicable, non-judicial foreclosure, and there is no
exemption available to the Borrower which would interfere with such right to
foreclose (except as may be imposed by bankruptcy, insolvency, moratorium,
redemption or other similar laws affecting creditors' rights generally, or by
general principals of equity) and to the Seller's knowledge, no Borrower is a
debtor in a state or federal bankruptcy or insolvency proceeding;
(xxv) Each Borrower represents and warrants that except as set forth
in certain Environmental Reports and to the best of its knowledge it has not
used, caused or permitted to exist and will not use, cause or permit to exist
on the related Mortgaged Property any Hazardous Materials in any manner which
violates federal, state or local laws, ordinances, regulations, orders,
directives or policies governing the use, storage, treatment, transportation,
manufacture, refinement, handling, production or disposal of Hazardous
Materials; the related Borrower or an affiliate or an affiliate thereof agrees
to indemnify, defend and hold the mortgagee and its successors and assigns
harmless from and against losses, liabilities, damages, injuries, penalties,
fines, expenses, and claims of any kind whatsoever (including attorneys' fees
and costs) paid, incurred or suffered by, or asserted against, any such party
resulting from a breach of certain representations, warranties or covenants
given by the Borrower in connection with such Mortgage Loan. A Phase I
environmental report and with respect to certain Mortgage Loans, a Phase II
Environmental Report, was conducted by a reputable environmental engineer in
connection with such Mortgage Loan, which report did not indicate any material
non-compliance or material existence of Hazardous Materials or, if any material
non-compliance or material existence of Hazardous Materials was indicated in
any such report, funds sufficient to cure such findings have been escrowed by
the related Borrower and held by the related Mortgagee. To the best of the
Seller's knowledge, in reliance on such environmental reports, each Mortgaged
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Property is in material compliance with all applicable federal, state and local
laws pertaining to environmental hazards, and to the best of the Seller's
knowledge, no notice of violation of such laws has been issued by any
governmental agency or authority, except, in all cases, as indicated in certain
Environmental Reports or other documents previously provided to the Rating
Agencies; the Seller has not taken any action which would cause the Mortgaged
Property to not be in compliance with all federal, state and local laws
pertaining to environmental hazards;
(xxvi) Each Mortgage Loan contains provisions for the acceleration of
the payment of the unpaid principal balance of such Mortgage Loan if, without
complying with the requirements of the Mortgage Loan, the related Mortgaged
Property, or any controlling interest therein, is directly or indirectly
transferred or sold, or encumbered in connection with subordinate financing;
(xxvii) All improvements included in any MAI appraisals are within the
boundaries of the related Mortgaged Property, except for de minimis
encroachments onto adjoining parcels for which the Seller has obtained title
insurance against losses arising therefrom and no improvements on adjoining
parcels encroach onto the related Mortgaged Property except for de minimis
encroachments;
(xxviii) The Mortgage Loan Schedule is complete and accurate in all
material respects as of the dates of the information set forth therein;
(xxix) With respect to any Mortgage Loan where all or a material
portion of the estate of the related Borrower therein is a leasehold estate,
based upon the terms of the ground lease and any estoppel received from the
ground lessor, the Seller represents and warrants that:
(A) The ground lease or a memorandum regarding
such ground lease has been duly recorded. The ground lease permits the
interest of the lessee to be encumbered by the related Mortgage and
does not restrict the use of the related Mortgaged Property by such
lessee, its successors or assigns in a manner that would adversely
affect the security provided by the related Mortgage. To the Seller's
best knowledge, there has been no material change in the terms of the
ground lease since its recordation, except by any written instruments
which are included in the related Mortgage File;
(B) The lessor under such ground lease has agreed
in a writing included in the related Mortgage File that the ground
lease may not be amended, modified, canceled or terminated without the
prior written consent of the mortgagee and that any such action
without such consent is not binding on the mortgagee, its successors
or assigns;
(C) The ground lease has an original term (or an
original term plus one or more optional renewal terms, which, under
all circumstances, may be exercised, and will be enforceable, by the
mortgagee) that extends not less than 10 years beyond the stated
maturity of the related Mortgage Loan;
(D) Based on the title insurance policy (or
binding commitment therefor) obtained by the Seller, the ground lease
is not subject to any liens or
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encumbrances superior to, or of equal priority with, the Mortgage,
subject to exceptions of the types described in clause (xi) above and
liens that encumber the ground lessor's fee interest;
(E) The ground lease is assignable to the
mortgagee under the leasehold estate and its assigns without the
consent of the lessor thereunder;
(F) As of the closing date of the related Mortgage
Loan, the ground lease is in full force and effect, the Seller has
received no notice that any default beyond applicable notice and grace
periods has occurred, and there is no existing condition which, but
for the passage of time or giving of notice, would result in a default
under the terms of the ground lease;
(G) The ground lease or ancillary agreement
between the lessor and the lessee requires the lessor to give notice
of any default by the lessee to the mortgagee;
(H) A mortgagee is permitted a reasonable
opportunity (including, where necessary, sufficient time to gain
possession of the interest of the lessee under the ground lease
through legal proceedings, or to take other action so long as the
mortgagee is proceeding diligently) to cure any default under the
ground lease which is curable after the receipt of notice of any
default before the lessor may terminate the ground lease. All rights
of the mortgagee under the ground lease and the related Mortgage
(insofar as it relates to the ground lease) may be exercised by or on
behalf of the mortgagee;
(I) The ground lease does not impose any
restrictions on subletting that would be viewed as commercially
unreasonable by an institutional investor. The lessor is not permitted
to disturb the possession, interest or quiet enjoyment of any
subtenant of the lessee in the relevant portion of the Mortgaged
Property subject to the ground lease for any reason, or in any manner,
which would adversely affect the security provided by the related
Mortgage;
(J) Under the terms of the ground lease and the
related Mortgage, any related insurance proceeds or condemnation award
(other than in respect of a total or substantially total loss or
taking) will be applied either to the repair or restoration of all or
part of the related Mortgaged Property, with the mortgagee or a
trustee appointed by it having the right to hold and disburse such
proceeds as repair or restoration progresses, or to the payment of the
outstanding principal balance of the Mortgage Loan, together with any
accrued interest, except that in the case of condemnation awards, the
ground lessor may be entitled to a portion of such award;
(K) Under the terms of the ground lease and the
related Mortgage, any related insurance proceeds, or condemnation
award in respect of a total or substantially total loss or taking of
the related Mortgaged Property will be applied first to the payment of
the outstanding principal balance of the Mortgage Loan, together with
any accrued interest (except as provided by applicable law or in cases
where a different allocation would not be viewed as commercially
unreasonable by any institutional investor, taking into account the
relative duration of the ground lease and the related Mortgage and the
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ratio of the market value of the related Mortgaged Property to the
outstanding principal balance of such Mortgage Loan). Until the
principal balance and accrued interest rate are paid in full, neither
the lessee nor the lessor under the ground lease will have an option
to terminate or modify the ground lease without the prior written
consent of the mortgagee as a result of any casualty or partial
condemnation, except to provide for an abatement of the rent;
(L) Provided that the mortgagee cures any defaults
which are susceptible to being cured, the lessor has agreed to enter
into a new lease upon termination of the ground lease for any reason,
including rejection of the ground lease in a bankruptcy proceeding;
(xxx) With respect to Mortgage Loans that are cross-collateralized,
all other loans that are cross-collateralized by such Mortgage Loans are
included in the Mortgage Pool;
(xxxi) Neither the Seller nor any affiliate thereof has any obligation
to make any capital contribution to any Borrower under a Mortgage Loan, other
than contributions made on or prior to the Closing Date;
(xxxii) (1) The Mortgage Loan is directly secured by a Mortgage on a
commercial property or multifamily residential property, and (2) the fair
market value of such real property, as evidenced by an MAI appraisal conducted
within 12 months of the origination of the Mortgage Loan, was at least equal to
80% of the principal amount of the Mortgage Loan (a) at origination (or if the
Mortgage Loan has been modified in a manner that constituted a deemed exchange
under Section 1001 of the Code at a time when the Mortgage Loan was not in
default or default with respect thereto was not reasonably foreseeable, the
date of the last such modification) or (b) at the Closing Date; provided that
the fair market value of the real property interest must first be reduced by
(A) the amount of any lien on the real property interest that is senior to the
Mortgage Loan (unless such senior lien also secures a Mortgage Loan, in which
event the computation described in (a) and (b) shall be made on an aggregated
basis) and (B) a proportionate amount of any lien that is in parity with the
Mortgage Loan (unless such other lien secures a Mortgage Loan that is
cross-collateralized with such Mortgage Loan, in which event the computation
described in (a) and (b) shall be made on an aggregate basis);
(xxxiii) There are no subordinate mortgages encumbering the related
Mortgaged Property, nor are there any preferred equity interests held by the
Seller or any mezzanine debt related to such Mortgaged Property, except as set
forth in the Prospectus Supplement or in Schedule V to the Mortgage Loan
Purchase Agreement;
(xxxiv) The loan documents executed in connection with each Mortgage
Loan require that the related Borrower be a single-purpose entity. (For this
purpose, "single-purpose entity" shall mean an entity, other than an
individual, which is formed or organized solely for the purpose of owning and
operating a single property or group of properties provided that all such
properties are encumbered by Mortgage Loans, does not engage in any business
unrelated to such property and its financing, and does not have any assets
other than those related to its interest in the related Mortgaged Property or
its financing, or any indebtedness other than as permitted under the related
Mortgage Loan);
A-7
<PAGE>
(xxxv) Each Mortgage Loan prohibits the related Borrower from
mortgaging or otherwise encumbering the Mortgaged Property and from carrying
any additional indebtedness except in connection with trade debt and equipment
financings in the ordinary course of Borrower's business and liens contested in
accordance with the terms of the Mortgage Loans;
(xxxvi) Each Borrower covenants in the Mortgage Loan documents that it
shall remain in material compliance with all material licenses, permits and
other legal requirements necessary and required to conduct its business;
(xxxvii) Each Mortgaged Property is located on or adjacent to a
dedicated road, or has access to an irrevocable easement permitting ingress
and egress, is served by public utilities and services generally available in
the surrounding community or otherwise appropriate for the use in which the
Mortgaged Property is currently being utilized, and is a separate tax parcel;
(xxxviii) Based solely on a flood zone certification or a survey of
the related Mortgaged Property, if any portion of the improvements on the
Mortgaged Property is located in an area identified by the Federal Emergency
Management Agency, with respect to certain Mortgage Loans, or the Secretary of
Housing and Urban Development with respect to other Mortgage Loans, as having
special flood hazards, the terms of the Mortgage Loan require the Borrower to
maintain flood insurance;
(xxxix) To the knowledge of the Seller, with respect to each Mortgage
which is a deed of trust, a trustee, duly qualified under applicable law to
serve as such, currently so serves and is named in the deed of trust or has
been substituted in accordance with applicable law, and except in connection
with a trustee's sale after a default by the related Borrower, no fees are
payable to such trustee;
(xl) With respect to each Mortgage Loan which is identified in the
Mortgage Loan Schedule as a Credit Lease Loan:
(A) the base rental payments under each Credit
Lease are equal to or greater than the payments due under the loan
documents executed in connection with the related Credit Lease Loan
and are payable without notice or demand, and without setoff,
counterclaim, recoupment, abatement, reduction or defense and, subject
to the rights of the Tenant to terminate the Credit Lease or offset,
abate, suspend or otherwise diminish any amounts payable by the Tenant
under the Credit Lease which have been disclosed to Depositor, each
Credit Lease Loan fully amortizes over its original term and there is
no balloon payment of rent due under any Credit Lease;
(B) either (i) the obligations of the Tenant under
each Credit Lease, including, but not limited to, the obligation of
Tenant to pay fixed and additional rent, are not affected by reason of
any damage to or destruction of any portion of the related Credit
Lease Property; any taking of such Credit Lease Property or any part
thereof by condemnation or otherwise; or any prohibition, limitation,
interruption, cessation, restriction, prevention or interference of
Tenant's use, occupancy or enjoyment of such
A-8
<PAGE>
Credit Lease Property or (ii) with respect to each Credit Lease listed
on Schedule I hereto, a Lease Enhancement Policy has been obtained;
(C) every obligation associated with managing,
owning, developing and operating the Credit Lease Property, including,
but not limited to, the costs associated with utilities, taxes,
insurance, capital and structural improvements, maintenance and
repairs is an obligation of the Tenant;
(D) no borrower has any monetary obligations under
any Credit Lease that have not been met, or any nonmonetary
obligations under any Credit Lease the breach of which would result in
either the abatement of rent, a right of setoff or the termination of
the related Credit Lease;
(E) no Tenant can terminate any Credit Lease for
any reason (except for a default by the related borrower under the
Credit Lease) prior to the payments in full of (a) the principal
balance of the related Credit Lease Loan, (b) all accrued and unpaid
interest on such Credit Lease Loan and (c) any other sums due and
payable under such Credit Lease Loan, or, if a Tenant can terminate
any Credit Lease as a result of a casualty or condemnation, a Lease
Enhancement Policy has been obtained with respect to the related
Credit Lease Loan;
(F) if a Tenant assigns its Credit Lease or
sublets the related Credit Lease Property, such Tenant remains
primarily obligated under such Credit Lease unless each Rating Agency
has confirmed in writing that such transfer or sublet will not result
in a downgrade, qualification or withdrawal of the then-current
ratings of the Certificates;
(G) each Tenant has agreed to indemnify the
related borrower from any claims of any nature relating to the related
Credit Lease and Credit Lease Property, except for environmental
problems that were not created by such Tenant;
(H) if the obligations of the Tenant under any
Credit Lease are guaranteed by a guarantor pursuant to a guaranty, the
guaranty states that it represents the unconditional obligation of the
guarantor and is a guarantee of payment, not merely of collection;
(I) with respect to Loan No. 11 and Loan No 81,
the Tenant shall take occupancy of the premises by January 1, 1999,
and the improvements which are required to be made under such Loans
will be completed as required under such Loans will be completed as
required under such Credit Leases, subject to any applicable grace
periods;
(J) to the Seller's knowledge, each Credit Lease
contains customary and enforceable provisions which render the rights
and remedies of the lessor thereunder adequate for the enforcement and
satisfaction of the lessor's rights thereunder;
(K) to the Seller's knowledge, in reliance on a
tenant estoppel certificate and representation made by the Tenant
under the Credit Lease under the Mortgage Loan documents, as of the
closing date of each Credit Lease Loan (a) each Credit Lease was in
full force and effect, and no default by the Borrower or the Tenant
A-9
<PAGE>
has occurred under the Credit Lease, nor is there any existing
condition which, but for the passage of time or the giving of notice,
or both, would result in a default under the terms of the Credit
Lease, (b) none of the terms of the Credit Lease have been impaired,
waived, altered or modified in any respect (except as described in the
related tenant estoppel), (c) no Tenant has been released, in whole or
in part, from its obligations under the Credit Leases, (d) there is no
right of rescission, offset, abatement, diminution, defense or
counterclaim to any Credit Lease, nor will the operation of any of the
terms of the Credit Leases, or the exercise of any rights thereunder,
render the Credit Lease unenforceable, in whole or in part, or subject
to any right of rescission, offset, abatement, diminution, defense or
counterclaim, and no such right of rescission, offset, abatement,
diminution, defense or counterclaim has been asserted with respect
thereto and (e) each Credit Lease has a term ending on or after the
final maturity of the related Credit Lease Loan;
(L) to the Seller's knowledge, the Mortgaged
Property is not subject to any lease other than the related Credit
Lease, no Person has any possessory interest in, or right to occupy,
the Mortgaged Property except under and pursuant to such Credit Lease
and the Tenant under the related Credit Lease is in occupancy of the
Mortgaged Property;
(M) Based upon the rent payments provided for in
the related Credit Lease, the underwritten debt service coverage is
equal to or greater than 1.00x.
(N) With respect to any Balloon Payment Credit
Lease Loans, the Balloon Payment does not exceed 40% of the original
principal balance of such Credit Lease Loan.
(O) the mortgagee is entitled to notice of any
event of default from the Tenant under the Credit Leases;
(P) each Tenant under a Credit Lease is required
to make all rental payments directly to the mortgagee, its successors
and assigns under the related Credit Lease Loan; and
(Q) each Credit Lease Loan provides that the
related Credit Lease cannot be modified without the consent of the
mortgagee thereunder;
(xli) With respect to any Credit Lease Loan for which a residual value
insurance policy has been obtained:
(A) There is a residual value insurance policy in
effect for each such loan, each of which was issued by R.V.I. America
Insurance Company in Form 1.1;
(B) The claims on the residual value insurance
policy will be payable to the loss payee and the Trustee, on behalf of
the Certificateholders, has been designated as the loss payee;
A-10
<PAGE>
(C) Pursuant to the terms of the residual value
insurance policy, the person designated as loss payee is only
obligated to file a notice of final claim with R.V.I. America
Insurance Company in order to collect the insured amount;
(D) The residual value insurance policy has been
paid in full as of the effective date of such policy;
(E) As long as there is no event of default under
the terms of the Credit Lease, the residual value insurance policy
cannot be terminated prior to the Termination Date;
(F) The effective date for each related Credit
Lease Loan on the residual value insurance policy is prior to the
Closing Date;
(G) The date upon which the outstanding principal
balance of each related Credit Lease Loan is reduced to zero is the
policy termination date;
(H) The insured value is a pre-determined amount
for each Credit Lease Loan and equal to the expected mortgage loan
balance at loan maturity or expiration of initial lease term;
(I) The insured value shall always be greater than
the insured amount. The insured amount is the amount R.V.I. America
Insurance Company will pay to the loss payee upon the notification of
a claim. It is defined as the lesser of (i) the insured value and (ii)
the outstanding principal balance at the time the claim is made, plus
all accrued interest, less any sales proceeds received by the loss
payee;
(J) The residual value insurance policy will not
be amended at any time without the consent of the mortgagee;
(K) So long as there is no event of default under
terms of the mortgage, the residual value insurance policy will not
contain Borrower transfer restrictions; and
(L) The lease termination date does not occur
prior to the policy termination date or loan maturity date.
(xlii) With respect to any Credit Lease Loan for which a lease
enhancement policy has been obtained:
(A) There is a lease enhancement policy in effect
for each such loan, each of which was issued by Chubb Custom Insurance
Company;
(B) The claims on the lease enhancement policy
will be payable to the loss payee and the Trustee, on behalf of the
Certificateholders, has been designated as the loss payee;
(C) The lease enhancement policy has been paid in
full as of the effective date of such policy;
A-11
<PAGE>
(D) As long as there is no event of default under
the terms of the Credit Lease, the lease enhancement policy cannot be
terminated prior to the Termination Date;
(E) The effective date for each related Credit
Lease Loan on the lease enhancement policy is prior to the Closing
Date;
(F) The date upon which the outstanding principal
balance of each related Credit Lease Loan is reduced to zero is the
loan maturity date;
(G) The lease enhancement policy will not be
amended at any time without the consent of the mortgagee; and
(H) The lease termination date does not occur
prior to the loan maturity date.
(xliii) To the knowledge of the Seller, as of the date of the
origination of the related Mortgage Loan, there was no pending action, suit or
proceeding, arbitration or governmental investigation against a Borrower or
Mortgaged Property, an adverse outcome of which would materially and adversely
affect such Borrower's ability to perform under the related Mortgage Loan;
(xliv) No advance of funds has been made by the Seller to the related
Borrower (other than Mezzanine Debt and the acquisition of preferred equity
interests by the Preferred Interest Holder) and no funds have been received
from any person other than, or on behalf of, the related Borrower for, or on
account of, payments due on the Mortgage Loan;
(xlv) To the extent required under applicable law, as of the Cut-off
Date, the Seller was authorized to transact and do business in the jurisdiction
in which each related Mortgaged Property is located;
(xlvi) All collateral for the Mortgage Loans is being transferred as
part of the Mortgage Loans;
(xlvii) Except in connection with Crossed Loans and Multi-Property
Loans, no Mortgage Loan requires the mortgagee to release any portion of the
Mortgaged Property from the lien of the related Mortgage except upon (a)
payment in full of the related Mortgage Loan, (b) releases of unimproved
out-parcels or (c) releases of portions of the Mortgaged Property which will
not have a material adverse effect on the value of the collateral for the
related Mortgage Loan;
(xlviii) Any insurance proceeds in respect of a casualty loss
or taking, will be applied either to (a) the repair or restoration of all
or part of the related Mortgaged Property, with, in the case of all Mortgage
Loans other than Credit Lease Loans and with respect to all casualty losses or
takings in excess of a specified percentage of the related loan amount, the
mortgagee (or a trustee appointed by it) having the right to hold and disburse
such proceeds as the repair or restoration progresses, or (b) to the payment of
the outstanding principal balance of such Mortgage Loan together with any
accrued interest thereon;
A-12
<PAGE>
(xlix) A copy of each Form UCC-1 financing statement, if any, filed
with respect to personal property constituting a part of the related Mortgaged
Property, together with a copy of each Form UCC-2 or UCC-3 assignment, if any,
of such financing statement to the Seller and a copy of each Form UCC-2 or
UCC-3 assignment, if any, of such financing statement executed by the Seller in
blank which the Trustee or its designee is authorized to complete (and but for
the insertion of the name of the assignee and any related filing information
which is not yet available to the Seller) is in suitable form for filing in the
filing office in which such financing statement was filed;
(l) To the Seller's knowledge, (a) all material commercial leases
affecting the Mortgaged Properties securing the Mortgage Loans are in full
force and effect and (b) there exists no default under any such material
commercial lease either by the lessee thereunder or by the related Borrower
that could give rise to the termination of such lease;
(li) The improvements located on or forming part of each Mortgaged
Property comply with applicable zoning laws and ordinances, or constitute a
legal non-conforming use or structure or, if any such improvement does not so
comply, such non-compliance does not materially and adversely affect the value
of the related Mortgaged Property;
(lii) Each Mortgage Loan constitutes a "qualified mortgage" within the
meaning of Section 860G(a)(3) of the Code (but without regard to the rule in
Treasury Regulation ss.1.860G-2(f)(2) that treats a defective obligation as a
qualified mortgage or any substantially similar successor provision) and all
Prepayment Premiums and Yield Maintenance Charges constitute "customary
prepayment penalties" within the meaning of Treasury Regulation
ss.1.860G-1(b)(2).
(liii) With respect to any Mortgage Loan that pursuant to the mortgage
documents can be defeased, the Mortgage Loan cannot be defeased within two
years of the Closing Date, the borrower can pledge only United States
government securities (within the meaning of section 2(a)(16) of the Investment
Company Act of 1940) as the substitute collateral, and the borrower can be
required by the Servicer to establish that the release of the lien is to
facilitate the disposition of the Mortgaged Property or is in connection with
some other customary commercial transaction;
(liv) With respect to each Mortgage Loan for which there are
uncompleted improvements, the only security for such Mortgage Loan
(disregarding pledges of rents, third party guarantees and any personal
liability of the obligor) is the real property securing such Mortgage Loan and
at least 90% of the funds received by the borrower under such Mortgage Loan
have been spent or, pursuant to a binding agreement, are required to be spent
to acquire and/or improve the related Mortgaged Property;
(lv) The Mortgage Loan Documents for each Mortgage Loan provide that
such Mortgage Loan is non-recourse to the related parties thereto except for
certain acts including the fraud, willful misconduct or material
misrepresentation by the related Mortgagor and/or its affiliates and any act
resulting in the Mortgaged Property becoming an asset in a voluntary bankruptcy
or insolvency proceeding. Additionally, the Mortgage Loan Documents for each
Mortgage Loan provide that the related Mortgagor thereunder shall be liable to
the
A-13
<PAGE>
Seller for any losses incurred by the Seller due to (1) the misapplication or
misappropriation of rents, insurance proceeds or condemnation awards, (2) any
act of waste, and (3) any breach of the environmental convenants contained in
the related Mortgage Loan Documents; and
(lvi) If such Mortgage Loan is a ARD Loan, it commenced amortizing on
its initial scheduled Due Date and provides that: (i) its Mortgage Rate will
increase by no more than two percentage points in connection with the passage
of its Anticipated Repayment Date; (ii) its Anticipated Repayment Date is not
less than seven years following the origination of such Mortgage Loan; (iii) no
later than the related Anticipated Repayment Date, if it has not previously
done so, the related Borrower is required to enter into a "lockbox agreement"
whereby all revenue from the related Mortgaged Property shall be deposited
directly into a designated account controlled by the Servicer and (v) any cash
flow from the related Mortgaged Property that is applied to amortize such
Mortgage Loan following its Anticipated Repayment Date shall, to the extent
such net cash flow is in excess of the monthly payment payable therefrom, be
net of budgeted and discretionary (servicer approved) capital expenditures.
A-14
<PAGE>
SCHEDULE I TO EXHIBIT A
Loan # Name
11 Elder-Beerman at the Dayton Mall
32 Best Buy Dist. Ctr. - Stuanton, VA
39 Cobb Theaters - Tampa, FL
46 Fortunoff Backyard Store
50 Hoyts Theatre - Linthicum, MD
77 Best Buy - Springfield, PA
81 Elder-Beerman at Millcreek Mall
90 Best Buy - Mayfield, OH
105 United Artists - Camarillo, CA
109 Eagle Country Market - Geneva IL
112 Office Depot - Paramus, NJ
117 Eagle Country Market - Moline, IL
141 Best Buy - Akron, OH
150 Best Buy - Columbia, SC
152 CVS Pharmacy - Stoughton, MA
161 Best Buy - Inver Grove Heights, MN
177 Hoyts Cinemas - Concord, NH
181 Best Buy - LaCrosse, WI
198 Hoyts Cinemas - Hooksett, NH
211 Eckerd Pharmacy - Mary Esther, FL
215 Rite Aid - Washington, MI
222 Office Depot - College Twp. PA
235 Eckerd Pharmacy - Forest Park
239 Walgreen Co. - Bedford, TX
241 Eckerd Pharmacy - Houma, LA
246 CVS Pharmacy, Woodstock, GA
247 Rite Aid - Melvindale, MI
249 Rite Aid - Auburn Hills, MI
259 Rite Aid - Cleveland, OH
275 Rite Aid - Auburn, ME
279 Rite Aid - Hazel Park, MI
286 Rite Aid - Morrow, GA
S-1
<PAGE>
EXHIBIT B
AFFIDAVIT OF LOST NOTE
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
________________,____________,being duly sworn, deposes and says:
1. that he is an authorized signatory of Credit Suisse First Boston
Mortgage Capital LLC ("CSFBMC");
2. that CSFBMC 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. (a) that CSFBMC, 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
CS First Boston Mortgage Capital Corp., under date of
_______________ (the "Note");
4. that the Note is now owned and held by CSFBMC;
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 CSFBMC; and
7. upon assignment of the Note by CSFBMC to Credit Suisse First Boston
Mortgage Securities Corp. (the "Depositor" or the "Purchaser") and subsequent
assignment by the
B-1
<PAGE>
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 _______ (the "Trustee") (which assignment may, at the
discretion of the Depositor, be made directly by CSFBMC to the Trustee) CSFBMC
covenants and agrees (a) promptly to 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 CSFBMC's or the Depositor's failure to
deliver said original Note to the Trustee.
CREDIT SUISSE FIRST BOSTON
MORTGAGE CAPITAL LLC
By:_______________________
Authorized Signatory
Sworn to before me this
___________day of June, 1998
B-2
<PAGE>
EXHIBIT C
FORM OF
ASSIGNMENT OF MORTGAGE(S) AND
ASSIGNMENT OF ASSIGNMENT OF LESSOR'S INTERESTS
IN LEASES, RENTS AND PROFITS
KNOW ALL MEN BY THESE PRESENTS:
THAT, as of __________, 199 , Credit Suisse First Boston Mortgage
Capital LLC, a Delaware limited liability company, whose address is Eleven
Madison Avenue, New York, New York 10010 ("ASSIGNOR") in consideration of
[ten and 00/100 ($10.00)] dollars and other good and valuable consideration,
paid by State Street Bank and Trust Company, a Massachusetts trust company, as
trustee for Credit Suisse First Boston Mortgage Securities Corp. Commercial
Mortgage Pass-Through Certificates, Series 1998-C1, whose address is Two
International Plaza - 5th Floor, Boston, Massachusetts 02110 ("ASSIGNEE"),
receipt of which is acknowledged by ASSIGNOR, hereby sells, assigns, transfers,
sets over and conveys unto the ASSIGNEE certain mortgage(s) and assignments of
leases, rents and profits and other collateral documents as follows:
See Schedule "A" attached hereto and incorporated herein by this
reference.
TOGETHER with the note(s), debt(s) and claim(s) secured by said
mortgage(s) and the covenants contained in said mortgage(s), together with all
amendments, supplements and modifications thereto and all liens, financing
statements, guaranties and security interests securing the payment of such
notes, including, without limitation, any other documents recorded in the real
property records of the jurisdiction in which the real property covered by the
mortgage(s) is located with respect to such notes, and any other documents,
agreements, instruments or property relating to such loan(s) and all right,
title, interest, claims, demands, causes of action and judgments securing or
relating to such loan(s); TO HAVE AND TO HOLD the same unto the ASSIGNEE and to
the successors, legal representatives and assigns of the ASSIGNEE forever.
THIS ASSIGNMENT is made without recourse or representation or warranty
of any kind or nature, express or implied except as expressly set forth in that
certain Mortgage Loan Purchase Agreement, dated as of June __, 1998 between
ASSIGNOR and Credit Suisse First Boston Mortgage Securities Corp.
C-1
<PAGE>
IN WITNESS WHEREOF, the ASSIGNOR has duly executed this Assignment the
__ day of June 1998.
IN PRESENCE OF:
By:________________________
Name:
Title:
C-2
<PAGE>
STATE OF )
) ss.:
COUNTY OF )
On this ________ day of ________ , 199___ , before me the undersigned,
a NOTARY PUBLIC OF ______________, personally appeared, as _________of Credit
Suisse First Boston Mortgage Capital LLC, a Delaware limited liability company,
who, I am satisfied, was the maker of the foregoing instrument and who then
stated and acknowledged to me that, as such officer and maker (1) he was
authorized to execute the foregoing instrument on behalf of said limited
liability company and (2) he executed said instrument as the act and deed of
said limited liability company.
IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed my
official seal at my office in ______________ the day and year last above
written.
Signature___________________________________
Print Name__________________________________
Residing at_________________________________
_________________________________
_________________________________
A NOTARY PUBLIC OF_______________
[AFFIX SEAL] My Commission expires on____________________
C-3
<PAGE>
ASSIGNMENT OF MORTGAGE
AND
ASSIGNMENT OF ASSIGNMENT OF LESSOR'S INTERESTS
IN LEASES, RENTS AND PROFITS
CREDIT SUISSE FIRST BOSTON MORTGAGE CAPITAL LLC
TO
STATE STREET BANK AND TRUST COMPANY, AS TRUSTEE
RECORD AND RETURN TO:
C-4
<PAGE>
Exhibit D
Form of Seller's In-House Counsel Opinion
D-1
<PAGE>
Exhibit 99.2
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
(Depositor or Purchaser)
and
PAINE WEBBER REAL ESTATE SECURITIES INC.
(Seller)
-------------------------------------------
MORTGAGE LOAN PURCHASE AGREEMENT
Dated as of June 11, 1998
-------------------------------------------
<PAGE>
TABLE OF CONTENTS
PAGE
1. TRANSACTIONS ON OR PRIOR TO THE CLOSING DATE........................ 1
2. CLOSING DATE ACTIONS................................................ 1
3. CONVEYANCE OF MORTGAGE LOANS........................................ 2
4. DEPOSITOR'S CONDITIONS TO CLOSING................................... 5
5. SELLER'S CONDITIONS TO CLOSING...................................... 7
6. REPRESENTATIONS AND WARRANTIES OF SELLER............................ 7
7. CURE AND REPURCHASE OBLIGATIONS OF SELLER........................... 8
8. REPRESENTATIONS AND WARRANTIES OF DEPOSITOR......................... 9
9. SURVIVAL OF CERTAIN REPRESENTATIONS, WARRANTIES AND COVENANTS...... 10
10. ACCOUNTANT'S LETTERS............................................... 11
11. EXPENSES; RECORDING COSTS.......................................... 11
12. NOTICES............................................................ 11
13. EXAMINATION OF MORTGAGE FILES...................................... 11
14. SUCCESSORS......................................................... 11
15. GOVERNING LAW...................................................... 12
16. SEVERABILITY....................................................... 12
17. FURTHER ASSURANCES................................................. 12
18. COUNTERPARTS....................................................... 12
19. TREATMENT AS SECURITY AGREEMENT.................................... 12
20. RECORDATION OF AGREEMENT........................................... 13
-i-
<PAGE>
MORTGAGE LOAN PURCHASE AGREEMENT
This Mortgage Loan Purchase Agreement (this "Agreement"),
dated as of June 11, 1998, is made by and between PAINE WEBBER REAL ESTATE
SECURITIES INC., a Delaware corporation and a wholly owned subsidiary of Paine
Webber Group, Inc. ("Seller") and CREDIT SUISSE FIRST BOSTON MORTGAGE
SECURITIES CORP., a Delaware corporation ("Depositor" or the "Purchaser").
RECITALS
I. Capitalized terms used herein without definition have the
meanings ascribed to them in the Schedule of Transaction Terms attached hereto
as Schedule I, which is incorporated herein by this reference, or, if not
defined therein, in the Pooling and Servicing Agreement.
II. On the Closing Date, and on the terms set forth herein,
Seller has agreed to sell to Depositor and Depositor has agreed to purchase
from Seller the Mortgage Loans identified on the schedule (the "Mortgage Loan
Schedule") annexed hereto as Schedule II. Depositor has agreed to deposit the
Mortgage Loans and other assets into the Trust Fund created pursuant to the
Pooling and Servicing Agreement and to cause the issuance of the Certificates.
AGREEMENT
NOW, THEREFORE, on the terms and conditions set forth below
and for good and valuable consideration, the receipt and adequacy of which is
hereby acknowledged, Depositor and Seller agree as follows:
1. Transactions on or Prior to the Closing Date. On or prior to the
Closing Date hereof, Seller shall have delivered the Mortgage Files with
respect to each of the Mortgage Loans listed in the Mortgage Loan Schedule to
State Street Bank and Trust Company, as custodian (in such capacity, the
"Custodian") or as trustee (in such capacity the "Trustee"), against receipt by
Seller of a trust receipt, pursuant to an arrangement between Seller and the
Custodian. As of the date hereof and as of the Closing Date, the Mortgage Loans
and the related Mortgage Files shall comply in all material respects with the
representations and warranties set forth in Exhibit A.
2. Closing Date Actions. The sale of the Mortgage Loans shall take place
on the Closing Date, subject to and simultaneously with the deposit of the
Mortgage Loans into the Trust Fund, the issuance of the Certificates and the
sale of (a) the Offered Certificates by Depositor to the Underwriters pursuant
to the Underwriting Agreement and (b) the Private Certificates by Depositor to
the Initial Purchasers pursuant to the Certificate Purchase Agreement. The
closing shall take place at the offices of Orrick, Herrington & Sutcliffe LLP,
666 Fifth Avenue, New York, New York 10103, or such other location as agreed
upon between the parties hereto. On the Closing Date, the following actions
shall take place in sequential order on the terms set forth herein:
(i) Seller shall sell to Depositor, and Depositor shall
purchase from Seller, the Mortgage Loans pursuant to this Agreement for the
Mortgage Loan Purchase Price payable in accordance with instructions previously
provided to Depositor by Seller. The
<PAGE>
Mortgage Loan Purchase Price (as defined herein) shall be paid by Depositor to
Seller or at its direction by wire transfer in immediately available funds to
an account designated by Seller on or prior to the Closing Date. The "Mortgage
Loan Purchase Price" paid by Depositor shall be equal to $399,669,008.
(ii) Pursuant to the terms of the Pooling and Servicing Agreement,
Depositor shall sell all of its right, title and interest in and to the
Mortgage Loans to the Trustee for the benefit of the Holders of the
Certificates.
(iii) Depositor shall sell to the Underwriters, and the Underwriters
shall purchase from Depositor, the Offered Certificates pursuant to the
Underwriting Agreement, and Depositor shall sell to the Initial Purchasers, and
the Initial Purchasers shall purchase from Depositor, the Private Certificates
pursuant to the Certificate Purchase Agreement.
(iv) The Underwriters will offer the Offered Certificates for sale to
the public pursuant to the Prospectus and the Prospectus Supplement and the
Initial Purchasers will privately place certain classes of the Certificates.
3. Conveyance of Mortgage Loans. Upon the sale of the Mortgage Loans on
the Closing Date, Seller, for and in consideration of the Mortgage Loan
Purchase Price, and for other good and valuable consideration, the sufficiency
of which is hereby acknowledged, does hereby bargain, sell, convey, assign and
transfer, without recourse except as provided herein, to Depositor, free and
clear of any liens, claims or other encumbrances, all of Seller's right, title
and interest in and to each of the Mortgage Loans identified on the Mortgage
Loan Schedule and all property of Seller described in Section 19 of this
Agreement. On or prior to the Closing Date, each Mortgage File has been
delivered by Seller to the Custodian. Each Mortgage File shall contain the
following documents:
(a) the original Mortgage Note, or with respect to those Mortgage
Loans listed in Schedule IV hereto, a "lost note" affidavit
substantially in the form of Exhibit B hereto and a true and complete
copy of the Mortgage Note, bearing, or accompanied by, all prior and
intervening endorsements or assignments thereof showing a complete
chain of endorsement or assignment from the Originator of the related
Mortgage Loan to Seller, and further endorsed (at the direction of
Depositor given pursuant to this Agreement) by 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 State Street Bank
and Trust Company, as trustee for the registered Holders of Credit
Suisse First Boston Mortgage Securities Corp. Commercial Mortgage
Pass-Through Certificates, Series 1998-C1, without recourse,
representation or warranty, express or implied";
(b) a duplicate original Mortgage (or a certified copy
thereof from the applicable recording office) and originals (or
certified copies from the applicable recording office) of any
intervening assignments thereof showing a complete chain of assignment
from the Originator of the related Mortgage Loan to Seller, in each
case with evidence of recording indicated thereon;
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(c) an original (or a true and complete copy if the original
has been sent by the Seller for recordation) Assignment of Mortgage
substantially in the form of Exhibit C hereto, in recordable form,
from Seller to State Street Bank and Trust Company, as trustee for the
registered Holders of Credit Suisse First Boston Mortgage Securities
Corp. Commercial Mortgage Pass-Through Certificates, Series 1998-C1;
(d) an original Assignment of Leases (if such item is a
document separate from the Mortgage), in recordable form;
(e) an original (or a true and complete copy if the original
has been sent by the Seller for recordation) of any related assignment
of Assignment of Leases (if such item is a document separate from the
Mortgage) substantially in the form of Exhibit C hereto and the
originals or copies of any intervening assignments thereof showing a
complete chain of assignment from the Originator of the related
Mortgage Loan to Seller, in each case with evidence of recording
thereon;
(f) an original or a true and complete copy of any related
Security Agreement (if such item is a document separate from the
Mortgage) and the originals or copies of any intervening assignments
thereof showing a complete chain of assignment from the Originator of
the related Mortgage Loan to Seller;
(g) an original assignment of any related Security Agreement
(if such item is a document separate from the Mortgage), in recordable
form, executed by Seller in favor of State Street Bank and Trust
Company, as trustee for the registered Holders of Credit Suisse First
Boston Mortgage Securities Corp. Commercial Mortgage Pass-Through
Certificates, Series 1998-C1;
(h) originals or true and complete 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 related Mortgage or Mortgage Note
or any related security document have been modified or the related
Mortgage Loan has been assumed;
(i) the original lender's title insurance policy or a copy
thereof effective as of the date of the recordation of the related
Mortgage Loan, together with all endorsements or riders that were
issued with or subsequent to the issuance of such policy, insuring the
priority of the related Mortgage as a first lien on the Mortgagor's
fee or leasehold, as applicable, interest in the Mortgaged Property
(subject to the matters set forth in paragraph (xi) of Exhibit A
hereto), or if the policy has not yet been issued, a written
commitment or interim binder, dated as of the date the related
Mortgage Loan was funded;
(j) the original or a true and complete copy of any guaranty
of the obligations of the Mortgagor under the related Mortgage Loan;
(k) 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 related
Mortgage Loan (and each assignee prior to the Trustee) in and to
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the personalty of the Mortgagor at the Mortgaged Property (in each
case with evidence of filing thereon), and to transfer such security
interest to the Trustee;
(l) the original power of attorney (with evidence of
recording thereon) granted by the Mortgagor if the Mortgage, Mortgage
Note or other document or instrument referred to above was not signed
by the Mortgagor;
(m) with respect to any debt of a Borrower permitted under
the related Mortgage Loan, a subordination agreement, standstill
agreement or other intercreditor agreement relating to such other
debt, if any;
(n) 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 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);
(o) any Loan Agreement; and
(p) any additional documents required to be added to the
Mortgage File pursuant to this Agreement.
Notwithstanding the foregoing, in the event that, in
connection with any Mortgage Loan, Seller cannot deliver an original recorded
counterpart of any of the documents required to be delivered pursuant to
clauses (b), (d), (f), (h), (k) and (l) above with evidence of recording or
filing thereon concurrently with the execution and delivery hereof, solely
because of a delay caused by the public recording office where such document or
instrument has been delivered for recordation, Seller shall deliver, or cause
to be delivered, to the Custodian a duplicate original or true copy of such
document certified by the applicable public recording or filing office to be a
true and complete duplicate original or copy of the original thereof submitted
for recording or filing.
Upon discovery of any Defect (as defined herein) or omission
in the deliveries of any of the items in this Section 3 with respect to any
Mortgage Loan, Seller shall promptly deliver or cause to be delivered to the
Custodian a correct and complete document or instrument meeting the
requirements of such item, but in no event shall any such delivery be made
later than 90 days following Seller's receipt of notice of such discovery;
provided, however, that if such Defect or omission would cause such Mortgage
Loan to be other than a "qualified mortgage" under Section 860G(a)(3) of the
Code, Seller shall cure such Defect or omission within 90 days of discovery.
Notwithstanding the foregoing, in the event that Seller
cannot deliver to the Custodian any UCC-2 or UCC-3 assignment with the filing
information of the UCC-1 financing statement being assigned, solely because of
a delay caused by the public filing office where such UCC-1 financing statement
has been delivered for filing, Seller shall deliver or cause to be delivered to
the Custodian a photocopy of such UCC-2 or UCC-3 assignment with the filing
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<PAGE>
information left blank. Seller, promptly upon receipt of the applicable filing
information of the UCC-1 financing statement being so assigned, shall deliver
to the Custodian the original UCC-2 or UCC-3 assignment with all appropriate
filing information set forth thereon.
The Trustee, as assignee or transferee of Depositor, shall be
entitled to all scheduled principal payments due after the Cut-off Date, all
other payments of principal due and collected after the Cut-off Date, and all
payments of interest on the Mortgage Loans, minus that portion of any such
payment which is allocable to the period on or prior to the Cut-off Date. All
scheduled payments of principal due on or before the Cut-off Date and collected
after the Cut-off Date, together with the accompanying interest payments, shall
belong to Seller.
Upon the sale of the Mortgage Loans from Seller to Depositor
pursuant hereto, the ownership of each Mortgage Note, the Mortgage and the
contents of the related Mortgage File shall be vested in Depositor and the
ownership of all records and documents with respect to the related Mortgage
Loan prepared by or which come into the possession of Seller as seller of the
Mortgage Loans hereunder, exclusive in each case of documents prepared by
Seller or any of its affiliates solely for internal uses, shall immediately
vest in Depositor and shall be forwarded by Seller to the Custodian by
overnight mail for next-day delivery and retained and maintained, in trust, by
the Custodian at the will of Depositor, in such custodial capacity only. All
Monthly Payments, Principal Prepayments and other amounts received by Seller
and not otherwise belonging to Seller pursuant to this Agreement shall be sent
by Seller within three (3) Business Days of Seller's receipt thereof to the
Servicer via wire transfer for deposit by the Servicer into the Collection
Account.
4. Depositor's Conditions to Closing. The obligations of Depositor
under this Agreement shall be subject to the satisfaction, on the Closing Date,
of the following conditions:
(a) Each of the obligations of Seller required to be
performed by it on or prior to the Closing Date pursuant to the terms
of this Agreement shall have been duly performed and complied with in
all material respects; all of the representations and warranties of
Seller under this Agreement shall be true and correct in all material
respects as of the date hereof and as of the Closing Date; and no
event shall have occurred with respect to Seller or any of the
Mortgage Loans and related Mortgage Files which, with notice or the
passage of time, would constitute a material default under this
Agreement; and Depositor shall have received certificates to the
foregoing effect signed by authorized officers of Seller.
(b) Depositor, or if directed by Depositor, the Custodian or
Depositor's attorneys, shall have received in escrow, all of the
following closing documents, in such forms as are agreed upon and
reasonably acceptable to Depositor and Seller, duly executed by all
signatories other than Depositor, as required pursuant to the
respective terms thereof:
(i) the Mortgage Files, which shall have been
delivered to and held by the Custodian on behalf of Seller;
(ii) the Mortgage Loan Schedule;
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<PAGE>
(iii) an officer's certificate of Seller, dated as
of the Closing Date, with certified copies of the charter,
by-laws, and a certificate of good standing dated as of a
recent date of Seller;
(iv) an opinion of Seller's in-house counsel, dated
the Closing Date, in substantially the same form as Exhibit D
attached hereto.
Such opinion may express its reliance as to factual
matters on, among other things specified in such opinion, the
representations and warranties made herein, and on certificates or
other documents furnished by officers of Seller.
In rendering the opinions expressed above, such
counsel may limit such opinions to matters governed by the General
Corporation Law of the State of Delaware and the laws of the State of
New York and the United States and shall not be required to express
any opinion with respect to the registration or qualification of the
Certificates under any applicable state or federal securities laws.
Such counsel shall state that, although such counsel
has not specifically considered the possible applicability to Seller
of any other laws, regulations, judgments, orders or decrees, no facts
have been disclosed to such counsel that cause such counsel to
conclude that any other consent, approval or action is required;
(v) an opinion of Orrick, Herrington & Sutcliffe
LLP, special counsel to Seller, dated the Closing Date,
substantially to the effect of the following (with such
changes and modifications as Depositor may approve):
Assuming the due authorization, execution
and delivery of this Agreement by Seller,
this Agreement constitutes a valid and
binding agreement of Seller, enforceable
against Seller in accordance with its
terms, except to the extent that
enforcement hereof may be limited by (x)
bankruptcy, insolvency, reorganization,
moratorium or other similar laws now or
hereafter in effect and (y) general
principles of equity (regardless of whether
enforceability is considered in a
proceeding at law or in equity).
Such opinion may express its reliance as to factual
matters on, among other things specified in such opinion, the
representations and warranties made by, and on certificates or other
documents furnished by officers of, Seller.
In rendering the opinions expressed above, such
counsel may limit such opinions to matters governed by the laws of the
State of New York and the United States to the extent specifically
referred to; and
(vi) such other certificates of Seller's officers or
others and such other documents to evidence fulfillment of the
conditions set forth in this Agreement as Depositor or its counsel may
reasonably request.
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5. Seller's Conditions to Closing. The obligations of Seller under
this Agreement shall be subject to the satisfaction, on the Closing Date, of
the following conditions:
(a) Each of the obligations of Depositor required to be
performed by it on or prior to the Closing Date pursuant to the terms
of this Agreement shall have been duly performed and complied with in
all material respects and no event shall have occurred with respect to
Depositor which, with notice or the passage of time, would constitute
a material default under this Agreement, and Seller shall have
received certificates to that effect signed by authorized officers of
Depositor.
(b) Seller shall have received all of the following closing
documents, in such forms as are agreed upon and reasonably acceptable
to Seller and Depositor, duly executed by all signatories other than
Seller, as required pursuant to the respective terms thereof:
(i) an officer's certificate of Depositor, dated as
of the Closing Date, with the resolutions of Depositor
authorizing the transactions set forth therein, together with
copies of the charter, by-laws and certificate of good
standing dated as of a recent date of Depositor; and
(ii) such other certificates of its officers or
others and such other documents, including an opinion of
counsel to Depositor and to the Trustee, to evidence
fulfillment of the conditions set forth in this Agreement as
Seller or its counsel may reasonably request.
6. Representations and Warranties of Seller.
(a) Seller represents and warrants to Depositor as
of the date hereof as follows:
(i) Seller is duly organized, validly existing
and in good standing under the laws of the State of Delaware.
Seller has conducted and is conducting its business so as to
comply in all material respects with all applicable statutes
and regulations of regulatory bodies or agencies having
jurisdiction over it, except where the failure so to comply
would not have a materially adverse effect on the performance
by Seller of this Agreement, and there is no charge,
investigation, action, suit or proceeding before or by any
court, regulatory authority or governmental agency or body
pending or, to the knowledge of Seller, threatened, which is
reasonably likely to materially and adversely affect the
performance by Seller of this Agreement or the consummation
of transactions contemplated by this Agreement.
(ii) Neither the execution and delivery by
Seller of this Agreement, nor the compliance by Seller with
the provisions hereof, nor the consummation by Seller of
transactions contemplated by this Agreement will (I) conflict
with or result in a breach of, or constitute a default or
result in the acceleration of any obligations under, the
certificate of formation or operating agreement of Seller or,
after giving effect to the consents or the taking of the
actions contemplated by clause (II) of this subparagraph
(ii), any of the provisions of any law,
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governmental rule, regulation, judgment, decree or order
binding on Seller or its properties or any of the provisions
of any material indenture or mortgage or any other material
contract or instrument to which Seller is a party or by which
it or any of its properties is bound or result in the
creation or imposition of any lien, charge or encumbrance
upon any of its property pursuant to the terms of any such
indenture, mortgage, contract or other instrument (other than
pursuant to this Agreement) or (II) require the consent of or
notice to, or any filing with, any person, entity or
governmental body, which has not been obtained or made by
Seller, except where, in any of the instances contemplated by
clause (I) above or this clause (II), the failure to do so
will not have a material adverse effect on any transactions
relating to the sale of the Mortgage Loans by Seller.
(iii) The execution and delivery by Seller of this
Agreement, and the consummation of transactions contemplated
by this Agreement on the terms set forth herein, have been
duly authorized by all necessary limited liability company
action on the part of Seller and are within the limited
liability company power of Seller, and this Agreement has
been duly executed and delivered by Seller and constitutes a
legal, valid and binding instrument, enforceable against
Seller in accordance with its terms, subject to applicable
bankruptcy, reorganization, insolvency, moratorium and other
laws of general applicability relating to or affecting the
enforcement of creditors' rights generally, and to general
principles of equity and the discretion of the court
(regardless of whether enforcement of such remedies is
considered in a proceeding in equity or at law).
(iv) No consent, approval, authorization or order
of, registration or filing with, or notice to any federal,
state or local governmental authority or court that has not
been obtained, made or given is required in connection with
the execution, delivery and performance of this Agreement by
Seller.
(v) Except as set forth on Schedule V hereto, the
representations and warranties contained in Exhibit A hereto
are true and correct in all material respects as of the date
hereof.
7. Cure and Repurchase Obligations of Seller. Each of the representations
and warranties contained in or required to be made by Seller pursuant to
Section 6 of this Agreement shall survive the sale of the Mortgage Loans and
shall continue in full force and effect, subject to Section 14 of this
Agreement, notwithstanding any restrictive or qualified endorsement on the
mortgage notes and notwithstanding subsequent termination of this Agreement or
the Pooling and Servicing Agreement. The representations and warranties
contained in or required to be made by Seller pursuant to Section 6 of this
Agreement shall not be impaired by any review or examination of the Mortgage
Files or other documents evidencing or relating to the Mortgage Loans or any
failure on the part of Depositor to review or examine such documents and shall
inure to the benefit of any initial transferee of the Mortgage Loans from
Depositor including, without limitation, the Trustee for the benefit of the
Holders of the Certificates.
Upon discovery of any Defect, as defined herein, in a
Mortgage File, Depositor or its assignee shall promptly notify Seller in
writing of such Defect and request that Seller cure
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such Defect within 90 days from the date Seller was notified of such Defect
provided, however, that if such Defect would cause the Mortgage to be other
than a "qualified mortgage" under Section 860G(a)(3) of the Code, then such
cure shall be within 90 days of discovery of such Defect. A document in the
Mortgage File shall be deemed to have a "Defect" if (a) any document required
to be included in the Mortgage File is not in the possession of the Custodian,
on behalf of the Trustee, within the time required to be delivered pursuant to
this Agreement or (b) such document has not been properly executed or is
otherwise defective on its face; provided, however, that a document shall not
be deemed to have a Defect if such Defect is caused by the failure by Depositor
to execute such document after having been directed by Seller to execute such
document. If Seller does not correct or cure such Defect within such period,
Seller shall purchase such Mortgage Loan from the Trust Fund at the Purchase
Price pursuant to Section 2.03 of the Pooling and Servicing Agreement.
Within 90 days of the receipt of written notice by Seller of
a breach (a "Breach") of any of the representations, warranties or covenants of
Seller with respect to the Mortgage Loans set forth in Exhibit A to this
Agreement (or, if such Breach would cause the Mortgage Loan to be other than a
"qualified mortgage" under Section 860G(a)(3) of the Code, within 90 days of
discovery of such Breach) which materially and adversely affects either (i) the
interests of Depositor or the Certificateholders in the related Mortgage Loan
or (ii) the value of the related Mortgage Loan, Seller shall cure such Breach
and, if Seller does not correct or cure such Breach within such period, or if
such Breach cannot be so cured, then Seller shall purchase the affected
Mortgage Loan at the Purchase Price pursuant to Section 2.03 of the Pooling and
Servicing Agreement. If Seller is required to repurchase any Mortgage Loan that
is part of a Mortgage Group (as defined herein), Seller shall also be required
to repurchase the remaining Mortgage Loans in such Mortgage Group. For purposes
of this paragraph, a "Mortgage Group" is any group of Mortgage Loans identified
as a Mortgage Group on Schedule III to this Agreement.
The Purchase Price for any repurchased Mortgage Loan shall be
payable to Depositor or, subsequent to the assignment of the Mortgage Loans to
the Trustee, the Trustee as its assignee, by wire transfer of immediately
available funds to the account designated by Depositor or its assignee, and
Depositor or its assignee, upon receipt of such funds, shall promptly release
the related Mortgage File or cause it to be released, to Seller and shall
execute and deliver such instruments of transfer or assignment, in each case
without recourse, as shall be necessary to vest in Seller title to any Mortgage
Loan released pursuant hereto. The Depositor or the Servicer, as applicable,
shall deliver to Seller an officer's certificate setting forth the calculation
of the Purchase Price.
8. Representations and Warranties of Depositor. Depositor hereby
represents and warrants to Seller as of the date hereof, as follows:
(a) Depositor is duly organized and is validly existing as a
corporation in good standing under the laws of the State of Delaware,
with full corporate power and authority to own its assets and conduct
its business as it is conducted, and is duly qualified as a foreign
corporation in good standing in all jurisdictions in which the
ownership or lease of its property or the conduct of its business
requires such qualification (except where the failure to qualify would
not have a materially adverse effect on the consummation of any
transactions contemplated by this Agreement).
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(b) The execution and delivery by Depositor of this Agreement and
the performance of Depositor's obligations hereunder are within the
corporate power of Depositor and have been duly authorized, executed
and delivered by Depositor and neither the execution and delivery by
Depositor of this Agreement nor the compliance by Depositor with the
provisions hereof, nor the consummation by Depositor of the
transactions contemplated by this Agreement, will (i) conflict with or
result in a breach of, or constitute a default under, the certificate
of incorporation or by-laws of Depositor or, after giving effect to
the consents or taking of the actions contemplated by clause (ii) of
this paragraph (b), any of the provisions of any law, governmental
rule, regulation, judgment, decree or order binding on Depositor or
its properties, or any of the provisions of any material indenture or
mortgage or any other material contract or other instrument to which
Depositor is a party or by which it is bound or result in the creation
or imposition of any lien, charge or encumbrance upon any of its
properties pursuant to the terms of any such indenture, mortgage,
contract or other instrument (other than pursuant to the Pooling and
Servicing Agreement) or (ii) require the consent of or notice to, or
any filing with any person, entity or governmental body, which has not
been obtained or made by Depositor, except where, in any of the
instances contemplated by clause (i) above or this clause (ii), the
failure to do so will not have a material and adverse effect on the
consummation of any transactions contemplated by this Agreement.
(c) This Agreement has been duly executed and delivered by
Depositor and this Agreement constitutes a legal, valid and binding
instrument, enforceable against Depositor in accordance with its
terms, subject, as to the enforcement of remedies, to applicable
bankruptcy, reorganization, insolvency, moratorium and other laws
affecting the rights of creditors generally and to general principles
of equity and the discretion of the court (regardless of whether
enforcement of such remedies is considered in a proceeding in equity
or at law) and, as to rights of indemnification hereunder, subject to
limitations of public policy under applicable securities laws.
(d) There is no litigation, charge, investigation, action, suit
or proceeding by or before any court, regulatory authority or
governmental agency or body pending or, to the knowledge of Depositor,
threatened against Depositor the outcome of which could be reasonably
expected to materially and adversely affect the consummation of any
transactions contemplated by this Agreement.
9. Survival of Certain Representations, Warranties and Covenants. The
respective representations and warranties set forth in or made pursuant to this
Agreement, and the respective obligations of the parties hereto under Sections
7 and 11 of this Agreement, will remain in full force and effect, regardless of
any investigation or statement as to the result thereof made by or on behalf of
any party and will survive payment for the various transfers referred to herein
and delivery of the Certificates or termination of this Agreement.
10. Accountant's Letters. On or before the Closing Date, E&Y Kenneth
Leventhal Real Estate Group will have reviewed the characteristics of the
Mortgage Loans described in (a) the Mortgage Loan Schedule attached hereto and
set forth as an exhibit to the Pooling and Servicing Agreement and (b) the
computer disk prepared by Seller and provided to Depositor and will compare
those characteristics to, and ensure their agreement with (i) the description
of the
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Mortgage Loans contained in the Prospectus Supplement and the Memorandum,
respectively; (ii) original documentation and files of Seller maintained with
respect to each Mortgage Loan; and (iii) if applicable, information with
respect to such Mortgage Loans contained in the report on Form 8-K to be filed
by Depositor with the Commission in connection with the offering of the
Certificates. Seller will cooperate with Depositor and E&Y Kenneth Leventhal
Real Estate Group in making available all information and taking all steps
reasonably necessary to permit such accountants to complete the review set
forth in this Section 10 and to deliver the letters required of them under the
Underwriting Agreement and the Certificate Purchase Agreement.
11. Expenses; Recording Costs. Seller agrees to pay to Depositor or
its designee all recording and filing fees incurred in connection with the
recording or filing of the documents listed in Section 3 of this Agreement.
12. Notices. All communications hereunder will be in writing, and, (a)
if sent to Depositor, will be mailed, delivered or telecopied and confirmed to
it at Eleven Madison Avenue, 5th Floor, New York, New York 10010, Attention:
Allan J. Baum, Telecopy No.: (212) 325-8162; and (b) if sent to Seller, will be
mailed, delivered or telecopied to it at 1285 Avenue of the Americas, New York,
New York 10019, Attention: Steve Plust, Telecopy No.: (212) 713-8606.
13. Examination of Mortgage Files. Upon reasonable notice, Seller,
prior to the Closing Date, will make the Mortgage Files available to Depositor
or its agent for examination during normal business hours at Seller's offices
or such other location as shall otherwise be agreed upon by Depositor and
Seller. The fact that Depositor or its agent has conducted or has failed to
conduct any partial or complete examination of the Mortgage Files shall not
affect the rights of Depositor or the Trustee (for the benefit of the
Certificateholders) to demand cure, repurchase, or other relief as provided
herein.
14. Successors. This Agreement shall inure to the benefit of and shall
be binding upon Seller and Depositor and their respective successors and legal
representatives, and nothing expressed in this Agreement is intended or shall
be construed to give any other person any legal or equitable right, remedy or
claim under or in respect of this Agreement, or any provisions herein
contained, this Agreement and all conditions and provisions hereof being
intended to be and being for the sole and exclusive benefit of such persons and
for the benefit of no other person except that (a) the indemnities of Seller
contained in that certain Indemnification Agreement dated June 18, 1998 among
Seller, Credit Suisse First Boston Mortgage Capital LLC, Depositor and the
Underwriters, subject to all limitations therein contained, shall also be for
the benefit of the officers and directors of Depositor, the Underwriters and
the Initial Purchasers and any person or persons who control Depositor, the
Underwriters and the Initial Purchasers within the meaning of Section 15 of the
Securities Act or Section 20 of the 1934 Act, and (b) the rights of Depositor
pursuant to this Agreement, subject to all limitations herein contained,
including those set forth in Section 9 of this Agreement, may be assigned to
the Trustee as may be required to effect the purposes of the Pooling and
Servicing Agreement and, upon such assignment, the Trustee shall succeed to
such rights of Depositor hereunder. No owner of a Certificate issued pursuant
to the Pooling and Servicing Agreement shall be deemed a successor because of
such ownership.
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15. Governing Law. THIS AGREEMENT SHALL BE GOVERNED AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS TO
BE MADE AND PERFORMED ENTIRELY WITHIN SUCH STATE WITHOUT GIVING EFFECT TO
CHOICE OF LAW PRINCIPLES.
16. Severability. If any provision of this Agreement shall be
prohibited or invalid under applicable law, this Agreement shall be ineffective
only to such extent, without invalidating the remainder of this Agreement.
17. Further Assurances. Depositor and Seller agree to execute and
deliver such instruments and take such actions as the other parties may, from
time to time, reasonably request in order to effectuate the purpose and to
carry out the terms of this Agreement.
18. Counterparts. This Agreement may be executed in counterparts (and
by each of the parties hereto on different counterparts), each of which when so
executed and delivered will be an original, and all of which together will be
deemed to constitute but one and the same instrument.
19. Treatment as Security Agreement. It is the express intent of the
parties hereto that the conveyance of the Mortgage Loans by Seller to Depositor
as provided in this Agreement be, and be construed as, a sale of the Mortgage
Loans by Seller to Depositor. It is, further, not the intention of the parties
that such conveyance be deemed a pledge of the Mortgage Loans by Seller to
Depositor to secure a debt or other obligation of Seller. However, in the event
that, notwithstanding the intent of the parties, the Mortgage Loans are held to
be property of Seller or if for any reason this Agreement is held or deemed to
create a security interest in the Mortgage Loans, then:
(a) this Agreement shall hereby create a security agreement
within the meaning of Articles 8 and 9 of the Uniform Commercial Code
in effect in the applicable state;
(b) the conveyance provided for in this Agreement shall
hereby grant from Seller to Depositor a security interest in and to
all of Seller's right, title, and interest, whether now owned or
hereafter acquired, in and to:
(i) all accounts, contract rights, general intangibles,
chattel paper, instruments, documents, money, deposit
accounts, certificates of deposit, goods, letters of credit,
advices of credit and investment property consisting of,
arising from or relating to any of the property described in
the Mortgage Loans, including the related Mortgage Notes,
Mortgages and title, hazard and primary mortgage insurance
policies identified on the Mortgage Loan Schedule, including
all replacement Mortgage Loans, and all distributions with
respect thereto payable on and after the Cut-off Date;
(ii) all accounts, contract rights, general intangibles,
chattel paper, instruments, documents, money, deposit
accounts, certificates of deposit, goods, letters of credit,
advices of credit, and investment property arising from or by
virtue of the disposition of, or collections with respect to,
or insurance proceeds
12
<PAGE>
payable with respect to, or claims against other persons with respect
to, all or any part of the collateral described in (i) above
(including any accrued discount realized on liquidation of any
investment purchased at a discount); and
(iii) all cash and non-cash proceeds of the collateral
described in (i) and (ii) above;
(c) The possession by Depositor or its assignee of the Mortgage
Notes, the Mortgages and such other goods, letters of credit, advices
of credit, instruments, money, documents, chattel paper or
certificated securities shall be deemed to be possession by the
secured party or possession by a purchaser for purposes of perfecting
the security interest pursuant to the Uniform Commercial Code
(including, without limitation, Sections 9-305 and 9-115 thereof) as
in force in the relevant jurisdiction; and
(d) notifications to persons holding such property, and
acknowledgments, receipts, confirmations from persons holding such
property, shall be deemed to be notifications to, or acknowledgments,
receipts or confirmations from, financial intermediaries, bailees or
agents of, or persons holding for (as applicable), Depositor or its
assignee for the purpose of perfecting such security interest under
applicable law. Seller, Depositor or their assignee at the direction
of Seller shall, to the extent consistent with this Agreement, take
such actions as may be necessary to ensure that, if this Agreement
were deemed to create a security interest in the Mortgage Loans and
the proceeds thereof, such security interest would be a perfected
security interest of first priority under applicable law and will be
maintained as such throughout the term of this Agreement. In
connection herewith, Depositor and its assignee shall have all of the
rights and remedies of a secured party and creditor under the Uniform
Commercial Code as in force in the relevant jurisdiction.
20. Recordation of Agreement. To the extent permitted by applicable law,
this Agreement is subject to recordation following the Closing Date 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 Seller at Seller's
expense at the direction of Depositor accompanied by an Opinion of Counsel to
the effect that such recordation materially and beneficially affects the
interests of Depositor.
* * *
13
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this
Mortgage Loan Purchase Agreement to be duly executed and delivered as of this
11th day of June 1998.
PAINE WEBBER REAL ESTATE SECURITIES INC.,
as Seller
By: /s/ Steven J. Plust
----------------------------------------
Name: Steven J. Plust
Title: Managing Director
CREDIT SUISSE FIRST BOSTON MORTGAGE
SECURITIES CORP.,
as Depositor or Purchaser
By: /s/ Allan J. Baum
----------------------------------------
Name: Allan J. Baum
Title: Vice President
<PAGE>
SCHEDULE I
SCHEDULE OF TRANSACTION TERMS
This Schedule of Transaction Terms is appended to and incorporated by
reference in the Mortgage Loan Purchase Agreement (the "Agreement"), dated as
of June 11, 1998, between Paine Webber Real Estate Securities Inc. ("Seller")
and Credit Suisse First Boston Mortgage Securities Corp. ("Depositor" or
"Purchaser"). Capitalized terms used herein without definition have the
meanings given them in or by reference in the Agreement or, if not defined in
the Agreement, in the Pooling and Servicing Agreement, the Underwriting
Agreement or the Certificate Purchase Agreement, as the case may be.
"Borrower" means the borrower under the Mortgage Loan.
"Certificate Purchase Agreement" means the Certificate Purchase
Agreement, dated June 18, 1998, between Depositor and the Initial Purchasers.
"Certificates" means each class of the Credit Suisse First Boston
Mortgage Securities Corp. Commercial Mortgage Pass-Through Certificates, Series
1998-C1.
"Closing Date" means June 25, 1998.
"Code" means the Internal Revenue Code of 1986, as amended.
"Cut-off Date" means June 11, 1998.
"Environmental Report" means the environmental audit report with
respect to each Mortgaged Property delivered to Seller in connection with the
related Mortgage, if any.
"Initial Purchasers" means Credit Suisse First Boston Corporation and
PaineWebber Incorporated.
"Investment Officer" means any employee of Seller designated by Seller
as an "investment officer" or whose title includes the words "investment
officer."
"Loan Agreement" means, with respect to any Mortgage Loan, the loan
agreement, if any, between the Originator and the Borrower, pursuant to which
such Mortgage Loan was made.
"Memorandum" means the Private Placement Memorandum dated June 18,
1998, describing certain classes of the Certificates.
"Mortgage Loan Pool" means the pool of Mortgage Loans, which are the
primary assets of the Trust Fund.
"Mortgage Loan Purchase Price" means the amount described in Section 2
of the Agreement.
I-1
<PAGE>
"Mortgage Loans" means the mortgage loans to be sold to Depositor
pursuant to the Agreement, specifically identified in the Mortgage Loan
Schedule to the Agreement.
"Offered Certificates" means the Class A-1A, Class A-1B, Class A-2MF,
Class A-X, Class B, Class C, Class D and Class E Certificates.
"Originator" means any institution which originated a Mortgage Loan
for a related Borrower.
"Pooling and Servicing Agreement" means the Pooling and Servicing
Agreement creating the Trust Fund and the interests therein, dated as of June
11 , 1998, among the Servicer, the Special Servicer, Depositor and the Trustee,
including the Mortgage Loan Schedule annexed thereto.
"Prospectus" means the Prospectus, dated June 11, 1998.
"Prospectus Supplement" means the Prospectus Supplement, dated June
18, 1998, relating to the Offered Certificates.
"Underwriters" means Credit Suisse First Boston Corporation and
PaineWebber Incorporated.
"Underwriting Agreement" means the Underwriting Agreement, dated June
18, 1998, between Depositor and the Underwriters.
I-2
<PAGE>
SCHEDULE II
MORTGAGE LOAN SCHEDULE
(previously filed with the 424(b)(5) filing)
II-1
<PAGE>
SCHEDULE III
MORTGAGE LOANS CONSTITUTING MORTGAGE GROUPS
[None]
III-1
<PAGE>
SCHEDULE IV
MORTGAGE LOANS WITH LOST NOTES
Loan No. Property Name
IV-1
<PAGE>
SCHEDULE V
EXCEPTIONS TO SELLER'S REPRESENTATIONS AND WARRANTIES
Loan 5 - 45 Wall Street
- -----------------------
Rep. #(liv):
Except that with respect to Loan 5 - 45 Wall Street, the representation is true
and correct except that there is no non-recourse carve-out for willful
misconduct and the Mortgage Loan Documents do not provide that the Borrower is
liable to the Mortgage Loan Seller for acts of waste.
Loan 42-Circuit City/CarMax-Fort Worth
- --------------------------------------
Rep. #(xxxvii)
Except that with respect to Loan 42 Circuit City/CarMax-Fort Worth, the
representation is true and correct except that the property is not yet a
separate tax lot. It has legally subdivided and separate tax lot status is
pending but not yet granted. PaineWebber has been indemnified by Circuit/City
(which owns the adjoining parcel) for any liability that may arise from the
current lack of separate tax parcel status.
Loan 103 - AT&T Office Center
- -----------------------------
Rep. #(liv):
Except that with respect to Loan 103 - AT&T Office Center, the representation
is true and correct except that the Mortgage Loan Documents do not provide that
the Borrower is liable to the Mortgage Loan Seller for acts of waste.
Loan 139-Murchison Medical Plaza
- --------------------------------
Rep. #(xxxv)
Except that with respect to Loan 139-Murchison Medical Plaza, the
representation is true and correct except that there is an allowance for
additional subordinate indebtedness subject, however, to the limitation that
the combined debt service coverage for such indebtedness may not exceed 1.15x
DSCR. Further, such future indebtedness shall be subject to an intecreditor
subordination and standstill agreement.
Loan 159 - Webster Square
- -------------------------
Rep. #(liv):
Except that with respect to Loan 159 - Webster Square, the representation is
true and correct except that there is no non-recourse carve-out for fraud,
willful misconduct or material misrepresentation and the Mortgage Loan
Documents do not provide that the Borrower is liable to the Mortgage Loan
Seller for acts of waste.
Loan 180 - Rite Aid / Baltimore
- -------------------------------
Rep. # (liv):
Except that with respect to Loan 180 - Rite Aid / Baltimore, the Mortgage Loan
is non-recourse to the related parties without carve-out or exception, however,
the Mortgage Loan is a bondable credit-tenant lease loan.
Loan 200 - Rite Aid Pharmacy / Cleveland
- ----------------------------------------
Rep. # (liv):
Except that with respect to Loan 200 - Rite Aid Pharmacy / Cleveland, the
Mortgage Loan is non-recourse to the related parties without carve-out or
exception, however, the Mortgage Loan is a bondable credit-tenant lease loan.
V-1
<PAGE>
Loan 206-Kon Tiki Mobile Home Park
- ----------------------------------
Rep. # (xxxiv):
Except that with respect to Loan 206-KonTiki Mobile Home Park, the
representation is true and correct except that the borrower is comprised of two
British Columbia (Canadian) corporations which own other property.
Loan 209 - Days Inn / Denny's
- -----------------------------
Rep. #(liv):
Except that with respect to Loan 209 - Days Inn / Denny's, the representation
is true and correct except that the Mortgage Loan Documents do not provide that
the Borrower is liable to the Mortgage Loan Seller for acts of waste.
Loan 248 - Rite Aid / Garettsville
- ----------------------------------
Rep. # (liv):
Except that with respect to Loan 248 - Rite Aid / Garettsville, the Mortgage
Loan is non-recourse to the related parties without carve-out or exception,
however, the Mortgage Loan is a bondable credit-tenant lease loan.
Loan 252 - Painters Mill Professional Building
- ----------------------------------------------
Rep. #(liv):
Except that with respect to Loan 252 - Painters Mill Professional Building, the
representation is true and correct except that there is no non-recourse
carve-out for willful misconduct.
Loan 268-701 East Trade
- -----------------------
Rep. #(xxxv)
Except that with respect to Loan 268-701 East Trade, the representation is true
and correct except that there is an allowance for secondary subordinate
indebtedness subject, however, to the limitation that the sum of the balance of
the first mortgage and the secondary subordinate debt does not exceed 75%
Loan-To-Value, based on a current appraisal and further that the subordinate
debt shall be subject to an intecreditor subordination and standstill
agreement.
Loan 276 - Rite Aid / Canton
- ----------------------------
Rep. # (liv):
Except that with respect to Loan 276 - Rite Aid / Canton, the Mortgage Loan is
non-recourse to the related parties without carve-out or exception, however,
the Mortgage Loan is a bondable credit-tenant lease loan.
Loan 296-Comfort Inn Santa Rosa
- -------------------------------
Rep. #(xxxv)
Except that with respect to Loan 296-Comfort Inn Santa Rosa, the representation
is true and correct except that there is additional subordinate indebtedness
encumbering the mortgage property, however, a subordination/standstill
agreement has been executed.
TRIPLE NET LEASES
- -----------------
Loan #36 Builders Square/Kmart - Pasadena/Woodland: Please note: This loan was
- ------------------------------------------------------------------------------
not described in the prospectus as Credit Tenant Loan
- -----------------------------------------------------
Rep. # (xl) (A) and (D)
- -----------------------
Except that with respect to Loan 36 - Builders Square/Kmart -
Pasadena/Woodland, the representations is true and correct except that the
Tenant has cure and offset/abatement rights if the Landlord shall default
V-2
<PAGE>
in the performance of certain obligations under the lease including (1)
maintenance of ingress/egress/parking ratio, (2) a requirement to
repair/rebuild buildings on the adjoining parcel after a casualty, and (3)
Landlord's obligation to not permit any other signs to be displayed onsite.
These exceptions are mitigated by due diligence which indicates that there are
no buildings on the adjoining out-parcels.
Additionally, the last payment under the Credit Tenant Loan is a $624,645
payment which is not fully covered by the last monthly Credit Lease payment.
Rep.# (xl) (B) and (E)
- ----------------------
Except with respect to Loan 36 - Builders Square/Kmart - Pasadena/Woodland, the
representations is true and correct except that (1) the Tenant may terminate
the lease with respect to a casualty if in the last two years the damage is
greater than $100,000 or in the last five years if the damage is greater than
50% and, (2) the Tenant may terminate the lease with a condemnation that is
greater than 15% of the building or if ingress/egress is impaired.
Additionally, the Tenant may offset/abate rent if the Leas is not terminated
and the Tenant restores.
Loan #187 Winn Dixie - Bunkie
- -----------------------------
Rep.# (xl)(A) and (D)
- ---------------------
Except that with respect to Loan 187 - Winn Dixie - Bunkie, this representation
is true and correct except that the Tenant has cure and offset/abatement rights
if the Landlord shall default in the performance of certain obligations under
the lease including (1) the Tenant's right to quiet enjoyment, (2) providing
the Tenant with access to utilities, (3) procuring liability insurance (Tenant
reimburses) and submitting tax bills to the Tenant for payment, (4) failure
with respect the representation made at lease commencement that the property
had no environmental waste and (5) failure to rebuild as required after
casualty. These exceptions are mitigated by a clean Phase I environmental
report received at closing.
Rep. #(liv):
Except that with respect to Loan 187 - Winn Dixie / Bunkie, the representation
is true and correct except that there is no non-recourse carve-out for fraud,
willful misconduct or material misrepresentation.
DOUBLE NET LEASES
- -----------------
Loan #151--Winn Dixie--Selma
- ----------------------------
Rep.# (xl) (A), (C) and (D)
- ---------------------------
Except that with respect to Loan 151 - Winn Dixie - Selma, the representation
is true and correct except that the Tenant has offset/abatement rights if the
Landlord fails to perform its monetary and non-monetary obligations including:
(1) roof and structure maintenance obligations, (2) Landlord's obligation to
make future structural changes to conform with zoning in the future, (3)
obligation to repair and restore after casualty and (4) violation of the
Tenant's right to quiet enjoyment. These obligations are mitigated (i) by an
escrowed annual reserve of $.1875 per square foot for roof and structural
obligations and, (ii) a monthly escrow to provide for twelve months of business
interruption insurance in the case of offset of rent during restoration after a
casualty.
Additionally, the last payment of the Credit Lease Loan is not fully covered by
the payments under the Credit Tenant Lease; there is a $1,360,000 balloon
payment which represents approximately 30% of the loan. This exception is
mitigated by a RVI America Insurance Company policy for the full amount of the
balloon.
V-3
<PAGE>
Loan #223 Winn Dixie--Auburn
- ----------------------------
Rep.# (xl)(A), (C) and (D)
- --------------------------
Except with respect to Loan 223 - Winn Dixie - Auburn, the representation is
true and correct except that the Tenant has offset/abatement rights if the
Landlord fails to perform its monetary and non-monetary obligations including:
(1) structural area obligations and common area maintenance (CAM is fully
reimbursed monthly by the Tenant), (2) maintenance of Tenant's quiet enjoyment,
(3) the obligation to make future structural hangs as required by law, (4)
maintenance of a parking ratio of 360 spaces, (5) procurement of general
liability and all risk insurance policies (Tenant reimburses), (6) procurement
and payment of common area liability insurance, (7) Landlord's repair
obligations after casualty and, (7) violation of Tenant's quiet enjoyment.
These obligations are mitigated (i) by an escrowed annual reserve of $.15 per
square foot for the roof and structural obligations, and (ii) the Tenant's
reimbursement of common area maintenance charges monthly to the Landlord.
Rep. #(liv):
Except that with respect to Loan 223 - Winn Dixie / Montgomery, the
representation is true and correct except that there is no non-recourse
carve-out for fraud, willful misconduct or material misrepresentation.
Loan #235--Eckerd--Forest Park
- ------------------------------
Rep. # (xl) (A), (C) and (D)
- ----------------------------
Except that with respect to Loan # 235 - Eckerd - Forest Park, the
representation is true and correct except that the Tenant has offset/abatement
rights if the Landlord fails to perform its monetary and non-monetary
obligations including (1) ongoing repair of roof and structure, (2) a one year
obligation from the date of commencement to make repairs with respect to faulty
construction, (3) removal of any mechanics liens, (3) violation of its
representation at lease commencement that the property is free from hazardous
waste, (4) the requirement to procure general liability insurance (the Tenant
must reimburse), (5) violation of a restriction to lease to another similar
store within 1,000 feet of the property (there are no termination rights
associated with this clause) and, (6) ongoing ingress/egress obligation subject
to circumstances beyond the Landlord's control. These obligations are mitigated
by (i) a monthly escrowed reserve of $.1875 per square foot for the roof ad
structural obligations, (ii) a reserve established at closing for the one year
construction warranty period, (iii) a Chubb bond insurance policy for
condemnation and (iv) a clean Phase I received at closing.
Additionally, the last payment of the Credit Lease Loan is not fully covered by
the payments under the Credit Tenant Lease, there is a $700,000 balloon payment
which represents approximately 30% of the loan. This exception is mitigated by
a RVI America Insurance Company policy for the full amount of the balloon.
Rep. #(liv):
Except that with respect to Loan 235 - Eckerds / Forest Park, the
representation is true and correct except that the Mortgage Loan Documents do
not provide that the Borrower is liable to the Mortgage Loan Seller for acts of
waste.
Loan #305 Rite Aid, Monticello
- ------------------------------
Rep. # (xl) (A), (C) and (D)
- ----------------------------
Except that with respect to Loan 305 - Rite Aid - Monticello, the
representation is true and correct except that the Tenant has offset/abatement
rights with respect to the following monetary and non monetary obligations: (1)
performance of roof and structural maintenance for the Property, (2) submission
of real estate taxes to the Tenant and procurement of insurance policies (the
Tenant pays taxes and reimburses
V-4
<PAGE>
for insurance), (3) removal of any mechanics liens. These obligations are
mitigated by (i) a monthly escrowed reserve of $.15 per square foot for the
roof and structural obligations and (ii) by excess DSCR (1.10X) for the loan.
Additionally, the Credit Tenant Lease ends one month prior to the Credit Tenant
Loan, accordingly, the Credit Tenant Lese payments do not cover one month of
the related payments due under the Credit Lease Loan. This except ion is
mitigated by the small size of the last principal payment (approximately
$11,000 or less than one percent of the loan balance) which is not covered by
the Lease payments.
Rep. # (xl) (E)
- ---------------
Except that with respect to Loan 305 - Rite Aid - Monticello, the
representation is true and correct, except that the Tenant may terminate the
Lease if (1) the Landlord leases to another pharmacy with the Shopping Center
(which consists of the Rite Aid building and two nearby tenant spaces), or (2)
if the Tenant is substantially denied access for 90 days. These obligations are
mitigated by (i) the Landlord's obligation to comply with and observe all of
its obligations as a landlord under the mortgage documents and, (ii) by a Chubb
condemnation insurance policy.
Rep. # (xl) (G)
- ---------------
Except that with respect to Loan 305 - Rite Aid - Monticello, the
representation is true and correct except that the Tenant has agreed to
indemnify the Landlord from all losses resulting from any claims which may
arise out of injury to persons or damage to property arising out of an act
attributable to the grossly negligent acts or omissions of the Tenant or his
servants, agents or employees on the Premises or Property.
Rep. # (K)(e)
- -------------
Except that with respect to Loan 305 - Rite Aid - Monticello, the
representation is true and correct except that the Credit Lease term ends one
month prior to the related Credit Lease Loan.
Loan #310 - Rite Aid, Mount Morris
- ----------------------------------
Rep.# (xl) (A), (C) and (D)
- ---------------------------
Except that with respect to Loan 310 - Rite Aid - Mount Morris, the
representation is true and correct except with respect to the Landlord's
obligation to (1) repair the roof and structure for the term of the lease and
(2) repair and restore the building after casualty. These obligations are
mitigated (I) by a monthly escrowed reserve of $.15 per square foot for the
roof and structural obligations and (ii) the lack of general tenant
offset/abatement rights if obligations are not performed.
Rep.# (xl) (E)
- --------------
Except that with respect to Loan 310 - Rite Aid - Mount Morris, the
representation is true and correct except that the Tenant may terminate the
Credit Lease or abate rent in the event Borrower or its agents operate a
pharmacy on land within 5 miles of the leased premises. This obligation is
mitigated by the Borrower's obligation to comply with and observe all of its
obligations as a landlord under the Mortgage Loan Documents.
Rep.# (G)
- ---------
Except that with respect to Loan 310 - Rite Aid - Mount Morris, the
representation is true and correct except that the Tenant has agreed to
indemnify the Landlord resulting from any act done or omission or negligence by
Tenant or caused by or resulting from Tenant's use, possession or the condition
of the premises or the conduct by Tenant.
V-5
<PAGE>
Rep.# (M)
- ---------
Except that with respect to Loan 310 - Rite Aid - Mount Morris, the
representation is true and correct except that the Mortgagee is entitled to
notice of the event of default form the Borrower through the Mortgage Loan
Documents rather than through the Tenant as required by the Credit Tenant
Lease.
Rep. # (liv):
- -------------
Except that with respect to Loan 310 - Rite Aid / Mount Morris, the
representation is true and correct except that there is no non-recourse
carve-out for fraud, willful misconduct or material misrepresentation.
V-6
<PAGE>
EXHIBIT A
REPRESENTATIONS AND WARRANTIES OF SELLER
REGARDING THE MORTGAGE LOANS
The Seller represents and warrants with respect to each Mortgage Loan,
as applicable, that as of the date hereof:
(i) Immediately prior to the sale, transfer and assignment to the
Depositor, no Mortgage Note or Mortgage was subject to any assignment (other
than to the Seller), participation or pledge, and the Seller had good and
marketable title to, and was the sole owner of, the Mortgage Loan;
(ii) The Seller has full right and authority to sell, assign and
transfer such Mortgage Loan and the assignment to the Depositor constitutes a
legal, valid and binding assignment of such Mortgage Loan;
(iii) The Seller is transferring such Mortgage Loan free and clear of
any and all liens, pledges, charges or security interests of any nature
encumbering such Mortgage Loan;
(iv) Each related Mortgage Note, Mortgage, Assignment of Leases (if
any) and other agreement executed in connection with such Mortgage Loan is the
legal, valid and binding obligation of the related Borrower, enforceable in
accordance with its terms, except as such enforcement may be limited by
bankruptcy, insolvency, reorganization, moratorium or other laws affecting the
enforcement of creditors rights generally, or by general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law) and to the Seller's knowledge, there is no valid defense,
counterclaim, or right of rescission available to the related Borrower with
respect to such Mortgage Note, Mortgage, Assignment of Leases and other
agreements;
(v) Each related Assignment of Leases creates a valid collateral or
first priority assignment of, or a valid first priority security interest in,
certain rights under the related lease, subject only to a license granted to
the related Borrower to exercise certain rights and to perform certain
obligations of the lessor under such lease, including the right to operate the
related Mortgaged Property; no person other than the related Borrower owns any
interest in any payments due under such lease that is superior to or of equal
priority with the mortgagee's interest therein;
(vi) Each related assignment of Mortgage from the Seller to the
Depositor and related assignment of the Assignment of Leases, if any, or
assignment of any other agreement executed in connection with such Mortgage
Loan from the Seller to the Depositor constitutes the legal, valid and binding
assignment from the Seller to the Depositor, except as such enforcement may be
limited by bankruptcy, insolvency, reorganization, liquidation, receivership,
moratorium or other laws relating to or affecting creditors' rights generally,
or by general principles of equity (regardless of whether such enforceability
is considered in a proceeding in equity or at law);
A-1
<PAGE>
(vii) Since origination, and except as set forth in the related
Mortgage File, such Mortgage Loan has not been modified, altered, satisfied,
canceled, subordinated or rescinded, and each related Mortgaged Property has
not been released from the lien of the related Mortgage in any manner which
materially interferes with the security intended to be provided by such
Mortgage;
(viii) Each related Mortgage is a valid and enforceable perfected
first lien on the related Mortgaged Property (subject to the matters described
in clause (xi) below), and such Mortgaged Property is free and clear of any
mechanics' and materialmen's liens which are prior to or equal with the lien of
the related Mortgage, except those which are insured against by a lender's
title insurance policy (as described below);
(ix) The Seller has not taken any action that would cause the
representations and warranties made by each related Borrower in the Mortgage
Loan not to be true;
(x) The Seller has no knowledge that the material representations and
warranties made by each related Borrower in such Mortgage Loan are not true in
any material respect;
(xi) The lien of each related Mortgage is a first priority lien on the
fee or leasehold interest of its related Borrower in the original principal
amount of such Mortgage Loan or allocated loan amount of the portions of the
Mortgaged Property covered thereby (as set forth in the related Mortgage) after
all advances of principal and is insured by an ALTA lender's title insurance
policy (or a binding commitment therefor), or its equivalent as adopted in the
applicable jurisdiction, insuring the Seller, its successors and assigns,
subject only to (a) the lien of current real property taxes, ground rents,
water charges, sewer rents and assessments not yet due and payable, (b)
covenants, conditions and restrictions, rights of way, easements and other
matters of public record, none of which, individually or in the aggregate,
materially interferes with the current use of the Mortgaged Property or the
security intended to be provided by such Mortgage or with the Borrower's
ability to pay its obligations when they become due or the value of the
Mortgaged Property and (c) the exceptions (general and specific) set forth in
such policy, none of which, individually or in the aggregate, materially
interferes with the current general use of the Mortgaged Property or materially
interferes with the security intended to be provided by such Mortgage or with
the related Borrower's ability to pay its obligations when they become due or
the value of the Mortgaged Property; the premium for such policy was paid in
full; such policy was issued by a title insurance company licensed to issue
policies in the state in which the related Mortgaged Property is located and is
assignable to the Depositor and the Trustee without the consent of or any
notification to the insurer, and is in full force and effect upon the
consummation of the transactions contemplated by this Agreement; no claims have
been made under such policy and the Seller has not undertaken any action or
omitted to take any action, and has no knowledge of any such act or omission,
which would impair or diminish the coverage of such policy;
(xii) The proceeds of such Mortgage Loan have been fully disbursed and
there is no requirement for future advances thereunder and the Seller covenants
that it will not make any future advances under the Mortgage Loan to the
related Borrower;
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(xiii) As of the later of the closing date for each Mortgage Loan or
the most recent inspection of the related Mortgaged Property by the Seller,
each related Mortgaged Property is free of any material damage that would
affect materially and adversely the value of such Mortgaged Property as
security for the Mortgage Loan or reserves have been established to remediate
such damage and, as of the closing date for each Mortgage Loan and, to the
Seller's knowledge, as of the date hereof, there is no proceeding pending for
the total or partial condemnation of such Mortgaged Property that would have a
material adverse effect on the value of the Mortgaged Property;
(xiv) The Seller has inspected or caused to be inspected each related
Mortgaged Property within the past 12 months or within three months of
origination of the Mortgage Loan;
(xv) No Mortgage Loan has a shared appreciation feature, any other
contingent interest feature or a negative amortization feature other than the
ARD Loans which may have negative amortization from and after the Anticipated
Repayment Date;
(xvi) Each Mortgage Loan is a whole loan and contains no equity
participation by the Seller or the applicable Originator;
(xvii) The Mortgage Rate (exclusive of any default interest, late
charges, or prepayment premiums) of such Mortgage Loan complied as of the date
of origination with, or is exempt from, applicable state or federal laws,
regulations and other requirements pertaining to usury; and any and all other
requirements of any federal, state or local laws, including, without
limitation, truth-in-lending, real estate settlement procedures, equal credit
opportunity or disclosure laws, applicable to such Mortgage Loan have been
complied with as of the date of origination of such Mortgage Loan;
(xviii) Neither the Seller nor, to the Seller's best knowledge, any
Originator other than the Seller, committed any fraudulent acts during the
origination process of any Mortgage Loan it originated and to the best of the
Seller's knowledge, the origination, servicing and collection of each Mortgage
Loan is in all respects legal, proper and prudent in accordance with customary
industry standards;
(xix) All taxes and governmental assessments that became due and owing
prior to the Closing Date with respect to each related Mortgaged Property have
been paid or an escrow of funds in an amount sufficient to cover such payments
has been established;
(xx) All escrow deposits and payments required pursuant to each
Mortgage Loan are in the possession, or under the control, of the Seller or its
agent and there are no deficiencies in connection therewith and all such
escrows and deposits have been conveyed by the Seller to the Depositor and
identified as such with appropriate detail;
(xxi) Each related Mortgaged Property is insured by a fire and
extended perils insurance policy, issued by an insurer meeting the requirements
of the Pooling and Servicing Agreement, in an amount not less than the
replacement cost and the amount necessary to avoid the operation of any
co-insurance provisions with respect to the related Mortgaged Property; each
related Mortgaged Property is also covered by business interruption insurance
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which covers a period of not less than 12 months and comprehensive general
liability insurance in amounts generally required by institutional lenders for
similar properties; all premiums on such insurance policies required to be paid
as of the date hereof have been paid; such insurance policies require prior
notice to the insured of termination or cancellation, and no such notice has
been received; such insurance names the Mortgagee under the Mortgage Loan and
its successors and assigns as a named or additional insured; other than the
Credit Lease Loans, each related Mortgage Loan obligates the related Borrower
to maintain all such insurance and, at such Borrower's failure to do so,
authorizes the mortgagee to maintain such insurance at the Borrower's cost and
expense and to seek reimbursement therefor from such Borrower;
(xxii) There is no monetary default, breach, violation or event of
acceleration existing under the related Mortgage Loan. To the Seller's
knowledge, there is no (a) material non-monetary default, breach, violation or
event of acceleration existing under the related Mortgage Loan or (b) event
(other than payments due but not yet delinquent) which, with the passage of
time or with notice and the expiration of any grace or cure period, would and
does constitute a default, breach, violation or event of acceleration;
(xxiii) No Mortgage Loan has been more than 30 days delinquent since
origination and as of the Cut-off Date no Mortgage Loan is 30 or more days
delinquent;
(xxiv) Each related Mortgage contains provisions so as to render the
rights and remedies of the holder thereof adequate for the realization against
the Mortgaged Property of the benefits of the security, including realization
by judicial or, if applicable, non-judicial foreclosure, and there is no
exemption available to the Borrower which would interfere with such right to
foreclose (except as may be imposed by bankruptcy, insolvency, moratorium,
redemption or other similar laws affecting creditors' rights generally, or by
general principals of equity) and to the Seller's knowledge, no Borrower is a
debtor in a state or federal bankruptcy or insolvency proceeding;
(xxv) Each Borrower represents and warrants that except as set forth
in certain Environmental Reports and to the best of its knowledge it has not
used, caused or permitted to exist and will not use, cause or permit to exist
on the related Mortgaged Property any Hazardous Materials in any manner which
violates federal, state or local laws, ordinances, regulations, orders,
directives or policies governing the use, storage, treatment, transportation,
manufacture, refinement, handling, production or disposal of Hazardous
Materials; the related Borrower or an affiliate thereof agrees to indemnify,
defend and hold the mortgagee and its successors and assigns harmless from and
against losses, liabilities, damages, injuries, penalties, fines, expenses, and
claims of any kind whatsoever (including attorneys' fees and costs) paid,
incurred or suffered by, or asserted against, any such party resulting from a
breach of certain representations, warranties or covenants given by the
Borrower in connection with such Mortgage Loan. A Phase I environmental report
and with respect to certain Mortgage Loans, a Phase II Environmental Report,
was conducted by a reputable environmental engineer in connection with such
Mortgage Loan, which report did not indicate any material non-compliance or
material existence of Hazardous Materials or, if any material non-compliance or
material existence of Hazardous Materials was indicated in any such report,
funds sufficient to cure such findings have been escrowed by the related
Borrower and held by the related Mortgagee. To the best of the Seller's
knowledge, in reliance on such environmental reports, each Mortgaged
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Property is in material compliance with all applicable federal, state and local
laws pertaining to environmental hazards, and to the best of the Seller's
knowledge, no notice of violation of such laws has been issued by any
governmental agency or authority, except, in all cases, as indicated in certain
Environmental Reports or other documents previously provided to the Rating
Agencies; the Seller has not taken any action which would cause the Mortgaged
Property to not be in compliance with all federal, state and local laws
pertaining to environmental hazards;
(xxvi) Each Mortgage Loan contains provisions for the acceleration of
the payment of the unpaid principal balance of such Mortgage Loan if, without
complying with the requirements of the Mortgage Loan, the related Mortgaged
Property, or any controlling interest therein, is directly or indirectly
transferred or sold, or encumbered in connection with subordinate financing;
(xxvii) All improvements included in any MAI appraisals are within the
boundaries of the related Mortgaged Property, except for de minimis
encroachments onto adjoining parcels for which the Seller has obtained title
insurance against losses arising therefrom and no improvements on adjoining
parcels encroach onto the related Mortgaged Property except for de minimis
encroachments;
(xxviii) The Mortgage Loan Schedule is complete and accurate in all
material respects as of the dates of the information set forth therein;
(xxix) With respect to any Mortgage Loan where all or a material
portion of the estate of the related Borrower therein is a leasehold estate,
based upon the terms of the ground lease and any estoppel received from the
ground lessor, the Seller represents and warrants that:
(A) The ground lease or a memorandum regarding such
ground lease has been duly recorded. The ground lease permits the
interest of the lessee to be encumbered by the related Mortgage and
does not restrict the use of the related Mortgaged Property by such
lessee, its successors or assigns in a manner that would adversely
affect the security provided by the related Mortgage. To the Seller's
best knowledge, there has been no material change in the terms of the
ground lease since its recordation, except by any written instruments
which are included in the related Mortgage File;
(B) The lessor under such ground lease has agreed
in a writing included in the related Mortgage File that the ground
lease may not be amended, modified, canceled or terminated without the
prior written consent of the mortgagee and that any such action
without such consent is not binding on the mortgagee, its successors
or assigns;
(C) The ground lease has an original term (or an
original term plus one or more optional renewal terms, which, under
all circumstances, may be exercised, and will be enforceable, by the
mortgagee) that extends not less than 10 years beyond the stated
maturity of the related Mortgage Loan;
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(D) Based on the title insurance policy (or binding
commitment therefor) obtained by the Seller, the ground lease is not
subject to any liens or encumbrances superior to, or of equal priority
with, the Mortgage, subject to exceptions of the types described in
clause (xi) above and liens that encumber the ground lessor's fee
interest;
(E) The ground lease is assignable to the mortgagee
under the leasehold estate and its assigns without the consent of the
lessor thereunder;
(F) As of the closing date of the related Mortgage
Loan, the ground lease is in full force and effect, the Seller has
received no notice that any default beyond applicable notice and grace
periods has occurred, and there is no existing condition which, but
for the passage of time or giving of notice, would result in a default
under the terms of the ground lease;
(G) The ground lease or ancillary agreement between
the lessor and the lessee requires the lessor to give notice of any
default by the lessee to the mortgagee;
(H) A mortgagee is permitted a reasonable
opportunity (including, where necessary, sufficient time to gain
possession of the interest of the lessee under the ground lease
through legal proceedings, or to take other action so long as the
mortgagee is proceeding diligently) to cure any default under the
ground lease which is curable after the receipt of notice of any
default before the lessor may terminate the ground lease. All rights
of the mortgagee under the ground lease and the related Mortgage
(insofar as it relates to the ground lease) may be exercised by or on
behalf of the mortgagee;
(I) The ground lease does not impose any
restrictions on subletting that would be viewed as commercially
unreasonable by an institutional investor. The lessor is not permitted
to disturb the possession, interest or quiet enjoyment of any
subtenant of the lessee in the relevant portion of the Mortgaged
Property subject to the ground lease for any reason, or in any manner,
which would adversely affect the security provided by the related
Mortgage;
(J) Under the terms of the ground lease and the
related Mortgage, any related insurance proceeds or condemnation award
(other than in respect of a total or substantially total loss or
taking) will be applied either to the repair or restoration of all or
part of the related Mortgaged Property, with the mortgagee or a
trustee appointed by it having the right to hold and disburse such
proceeds as repair or restoration progresses, or to the payment of the
outstanding principal balance of the Mortgage Loan, together with any
accrued interest, except that in the case of condemnation awards, the
ground lessor may be entitled to a portion of such award;
(K) Under the terms of the ground lease and the
related Mortgage, any related insurance proceeds, or condemnation
award in respect of a total or substantially total loss or taking of
the related Mortgaged Property will be applied first to the payment of
the outstanding principal balance of the Mortgage Loan, together with
any accrued interest (except as provided by applicable law or in cases
where a different allocation
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would not be viewed as commercially unreasonable by any institutional
investor, taking into account the relative duration of the ground
lease and the related Mortgage and the ratio of the market value of
the related Mortgaged Property to the outstanding principal balance of
such Mortgage Loan). Until the principal balance and accrued interest
rate are paid in full, neither the lessee nor the lessor under the
ground lease will have an option to terminate or modify the ground
lease without the prior written consent of the mortgagee as a result
of any casualty or partial condemnation, except to provide for an
abatement of the rent;
(L) Provided that the mortgagee cures any defaults
which are susceptible to being cured, the lessor has agreed to enter
into a new lease upon termination of the ground lease for any reason,
including rejection of the ground lease in a bankruptcy proceeding;
(xxx) With respect to Mortgage Loans that are
cross-collateralized, all other loans that are cross-collateralized by such
Mortgage Loans are included in the Mortgage Pool;
(xxxi) Neither the Seller nor any affiliate thereof has any
obligation to make any capital contribution to any Borrower under a Mortgage
Loan, other than contributions made on or prior to the Closing Date;
(xxxii) (1) The Mortgage Loan is directly secured by a
Mortgage on a commercial property or multifamily residential property, and (2)
the fair market value of such real property, as evidenced by an MAI appraisal
conducted within 12 months of the origination of the Mortgage Loan, was at
least equal to 80% of the principal amount of the Mortgage Loan (a) at
origination (or if the Mortgage Loan has been modified in a manner that
constituted a deemed exchange under Section 1001 of the Code at a time when the
Mortgage Loan was not in default or default with respect thereto was not
reasonably foreseeable, the date of the last such modification) or (b) at the
Closing Date; provided that the fair market value of the real property interest
must first be reduced by (A) the amount of any lien on the real property
interest that is senior to the Mortgage Loan (unless such senior lien also
secures a Mortgage Loan, in which event the computation described in (a) and
(b) shall be made on an aggregated basis) and (B) a proportionate amount of any
lien that is in parity with the Mortgage Loan (unless such other lien secures a
Mortgage Loan that is cross-collateralized with such Mortgage Loan, in which
event the computation described in (a) and (b) shall be made on an aggregate
basis);
(xxxiii) There are no subordinate mortgages encumbering the
related Mortgaged Property, nor are there any preferred equity interests held
by the Seller or any mezzanine debt related to such Mortgaged Property, except
as set forth in the Prospectus Supplement or in Schedule V to the Mortgage Loan
Purchase Agreement;
(xxxiv) The loan documents executed in connection with each
Mortgage Loan require that the related Borrower be a single-purpose entity.
(For this purpose, "single-purpose entity" shall mean an entity, other than an
individual, which is formed or organized solely for the purpose of owning and
operating a single property or group of properties provided that all such
properties are encumbered by Mortgage Loans, does not engage in any business
unrelated to such property and its financing, and does not have any assets
other than those related to its
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interest in the related Mortgaged Property or its financing, or any indebtedness
other than as permitted under the related Mortgage Loan);
(xxxv) Each Mortgage Loan prohibits the related Borrower from
mortgaging or otherwise encumbering the Mortgaged Property and from carrying
any additional indebtedness except in connection with trade debt and equipment
financings in the ordinary course of Borrower's business and liens contested in
accordance with the terms of the Mortgage Loans;
(xxxvi) Each Borrower covenants in the Mortgage Loan
documents that it shall remain in material compliance with all material
licenses, permits and other legal requirements necessary and required to
conduct its business;
(xxxvii) Each Mortgaged Property is located on or adjacent to
a dedicated road, or has access to an irrevocable easement permitting ingress
and egress, is served by public utilities and services generally available in
the surrounding community or otherwise appropriate for the use in which the
Mortgaged Property is currently being utilized, and is a separate tax parcel;
(xxxviii) Based solely on a flood zone certification or a
survey of the related Mortgaged Property, if any portion of the improvements on
the Mortgaged Property is located in an area identified by the Federal
Emergency Management Agency, with respect to certain Mortgage Loans, or the
Secretary of Housing and Urban Development with respect to other Mortgage
Loans, as having special flood hazards, the terms of the Mortgage Loan require
the Borrower to maintain flood insurance;
(xxxix) To the knowledge of the Seller, with respect to each
Mortgage which is a deed of trust, a trustee, duly qualified under applicable
law to serve as such, currently so serves and is named in the deed of trust or
has been substituted in accordance with applicable law, and except in
connection with a trustee's sale after a default by the related Borrower, no
fees are payable to such trustee;
(xl) With respect to each Mortgage Loan which is identified
in the Mortgage Loan Schedule as a Credit Lease Loan:
(A) the base rental payments under each Credit
Lease are equal to or greater than the payments due under the loan
documents executed in connection with the related Credit Lease Loan
and are payable without notice or demand, and without setoff,
counterclaim, recoupment, abatement, reduction or defense and, subject
to the rights of the Tenant to terminate the Credit Lease or offset,
abate, suspend or otherwise diminish any amounts payable by the Tenant
under the Credit Lease which have been disclosed to Depositor, each
Credit Lease Loan fully amortizes over its original term and there is
no balloon payment of rent due under any Credit Lease;
(B) either (i) the obligations of the Tenant under
each Credit Lease, including, but not limited to, the obligation of
Tenant to pay fixed and additional rent, are not affected by reason of
any damage to or destruction of any portion of the related Credit
Lease Property; any taking of such Credit Lease Property or any part
thereof by
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condemnation or otherwise; or any prohibition, limitation,
interruption, cessation, restriction, prevention or interference of
Tenant's use, occupancy or enjoyment of such Credit Lease Property or
(ii) with respect to each Credit Lease listed on Schedule I hereto, a
Lease Enhancement Policy has been obtained;
(C) every obligation associated with managing, owning,
developing and operating the Credit Lease Property, including, but not
limited to, the costs associated with utilities, taxes, insurance,
capital and structural improvements, maintenance and repairs is an
obligation of the Tenant;
(D) no borrower has any monetary obligations under any Credit
Lease that have not been met, or any nonmonetary obligations under any
Credit Lease the breach of which would result in either the abatement
of rent, a right of setoff or the termination of the related Credit
Lease;
(E) no Tenant can terminate any Credit Lease for any reason
(except for a default by the related borrower under the Credit Lease)
prior to the payments in full of (a) the principal balance of the
related Credit Lease Loan, (b) all accrued and unpaid interest on such
Credit Lease Loan and (c) any other sums due and payable under such
Credit Lease Loan, or, if a Tenant can terminate any Credit Lease as a
result of a casualty or condemnation, a Lease Enhancement Policy has
been obtained;
(F) if a Tenant assigns its Credit Lease or sublets the
related Credit Lease Property, such Tenant remains primarily obligated
under such Credit Lease unless each Rating Agency has confirmed in
writing that such transfer or sublet will not result in a downgrade,
qualification or withdrawal of the then-current ratings of the
Certificates;
(G) each Tenant has agreed to indemnify the related borrower
from any claims of any nature relating to the related Credit Lease and
Credit Lease Property, except for environmental problems that were not
created by such Tenant;
(H) if the obligations of the Tenant under any Credit Lease
are guaranteed by a guarantor pursuant to a guaranty, the guaranty
states that it represents the unconditional obligation of the
guarantor and is a guarantee of payment, not merely of collection;
(I) [Reserved]
(J) to the Seller's knowledge, each Credit Lease contains
customary and enforceable provisions which render the rights and
remedies of the lessor thereunder adequate for the enforcement and
satisfaction of the lessor's rights thereunder;
(K) to the Seller's knowledge, in reliance on a tenant
estoppel certificate and representation made by the Tenant under the
Credit Lease under the Mortgage Loan documents, as of the closing date
of each Credit Lease Loan (a) each Credit Lease was in full force and
effect, and no default by the Borrower or the Tenant has occurred
under the Credit Lease, nor is there any existing condition which, but
for the passage of time or the giving of notice, or both, would result
in a default under the terms
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of the Credit Lease, (b) none of the terms of the Credit Lease have
been impaired, waived, altered or modified in any respect (except as
described in the related tenant estoppel), (c) no Tenant has been
released, in whole or in part, from its obligations under the Credit
Leases, (d) there is no right of rescission, offset, abatement,
diminution, defense or counterclaim to any Credit Lease, nor will the
operation of any of the terms of the Credit Leases, or the exercise of
any rights thereunder, render the Credit Lease unenforceable, in whole
or in part, or subject to any right of rescission, offset, abatement,
diminution, defense or counterclaim, and no such right of rescission,
offset, abatement, diminution, defense or counterclaim has been
asserted with respect thereto and (e) each Credit Lease has a term
ending on or after the final maturity of the related Credit Lease
Loan;
(L) to the Seller's knowledge, the Mortgaged
Property is not subject to any lease other than the related Credit
Lease, no Person has any possessory interest in, or right to occupy,
the Mortgaged Property except under and pursuant to such Credit Lease
and the Tenant under the related Credit Lease is in occupancy of the
Mortgaged Property;
(M) each Credit Lease Loan provides that the
related Credit Lease cannot be modified without the consent of the
mortgagee thereunder;
(N) With respect to any Balloon Payment Credit
Lease Loans, the Balloon Payment does not exceed 40% of the original
principal balance of such Credit Lease Loan.
(O) the mortgagee is entitled to notice of any
event of default from the Tenant under the Credit Leases; and
(P) each Tenant under a Credit Lease is required to
make all rental payments directly to the mortgagee, its successors and
assigns under the related Credit Lease Loan;
(xli) With respect to any Credit Lease Loan for which a
residual value insurance policy has been obtained:
(A) There is a residual value insurance policy in
effect for each such loan, each of which was issued by R.V. I. America
Insurance Company in Form 1.1;
(B) The claims on the residual value insurance
policy will be payable to the loss payee and the Trustee, on behalf of
the Certificateholders, has been designated as the loss payee;
(C) Pursuant to the terms of the residual value
insurance policy, the person designated as loss payee is only
obligated to file a notice of final claim with R.V. I. America
Insurance Company in order to collect the insured amount;
(D) The residual value insurance policy has been
paid in full as of the effective date of such policy;.
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(E) As long as there is no event of default under
the terms of the Credit Lease, the residual value insurance policy
cannot be terminated prior to the Termination Date;
(F) The effective date for each related Credit
Lease Loan on the residual value insurance policy is prior to the
Closing Date.
(G) The date upon which the outstanding principal
balance of each related Credit Lease Loan is reduced to zero is the
policy termination date;
(H) The insured value is a pre-determined amount
for each Credit Lease Loan and equal to the expected mortgage loan
balance at loan maturity or expiration of initial lease term;
(I) The insured value shall always be greater than
the insured amount. The insured amount is the amount R.V.I. America
Insurance Company will pay to the loss payee upon the notification of
a claim. It is defined as the lesser of (i) the insured value and (ii)
the outstanding principal balance at the time the claim is made, plus
all accrued interest, less any sales proceeds received by the loss
payee;
(J) The residual value insurance policy will not be
amended at any time without the consent of the mortgagee;
(K) So long as there is no event of default under
terms of the mortgage, the residual value insurance policy will not
contain Borrower transfer restrictions; and
(L) The lease termination date does not occur prior
to the policy termination date or loan maturity date.
(xlii) With respect to any Credit Lease Loan for which a lease
enhancement policy has been obtained:
(A) There is a lease enhancement policy in effect
for each such loan, each of which was issued by Chubb Custom Insurance
Company;
(B) The claims on the lease enhancement policy will
be payable to the loss payee and the Trustee, on behalf of the
Certificateholders, has been designated as the loss payee;
(C) The lease enhancement policy has been paid in
full as of the effective date of such policy;.
(D) As long as there is no event of default under
the terms of the Credit Lease, the lease enhancement policy cannot be
terminated prior to the Termination Date;
(E) The effective date for each related Credit
Lease Loan on the loan policy is prior to the Closing Date;
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(F) The date upon which the outstanding principal
balance of each related Credit Lease Loan is reduced to zero is the
loan maturity date;
(G) The lease enhancement policy will not be
amended at any time without the consent of the mortgagee; and
(H) The lease termination date does not accrue
prior to the policy termination date or loan maturity date.
(xliii) To the knowledge of the Seller, as of the date of the
origination of the related Mortgage Loan, there was no pending action, suit or
proceeding, arbitration or governmental investigation against a Borrower or
Mortgaged Property, an adverse outcome of which would materially and adversely
affect such Borrower's ability to perform under the related Mortgage Loan;
(xliv) No advance of funds has been made by the Seller to the related
Borrower (other than Mezzanine Debt and the acquisition of preferred equity
interests by the Preferred Interest Holder) and no funds have been received
from any person other than, or on behalf of, the related Borrower for, or on
account of, payments due on the Mortgage Loan;
(xlv) To the extent required under applicable law, as of the Cut-off
Date, the Seller was authorized to transact and do business in the jurisdiction
in which each related Mortgaged Property is located;
(xlvi) All collateral for the Mortgage Loans is being transferred as
part of the Mortgage Loans;
(xlvii) Except in connection with Crossed Loans and Multi-Property
Loans, no Mortgage Loan requires the mortgagee to release any portion of the
Mortgaged Property from the lien of the related Mortgage except upon (a)
payment in full of the related Mortgage Loan, (b) releases of unimproved
out-parcels or (c) releases of portions of the Mortgaged Property which will
not have a material adverse effect on the value of the collateral for the
related Mortgage Loan;
(xlviii) Any insurance proceeds in respect of a casualty loss or
taking, will be applied either to (a) the repair or restoration of all or part
of the related Mortgaged Property, with, in the case of all Mortgage Loans
other than Credit Lease Loans and with respect to all casualty losses or
takings in excess of a specified percentage of the related loan amount, the
mortgagee (or a trustee appointed by it) having the right to hold and disburse
such proceeds as the repair or restoration progresses, or (b) to the payment of
the outstanding principal balance of such Mortgage Loan together with any
accrued interest thereon;
(xlix) A copy of each Form UCC-1 financing statement, if any, filed
with respect to personal property constituting a part of the related Mortgaged
Property, together with a copy of each Form UCC-2 or UCC-3 assignment, if any,
of such financing statement to the Seller and a copy of each Form UCC-2 or
UCC-3 assignment, if any, of such financing statement executed by the Seller in
blank which the Trustee or its designee is authorized to complete (and but for
the insertion of the name of the assignee and any related filing information
which is not
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yet available to the Seller) is in suitable form for filing in the filing office
in which such financing statement was filed;
(l) To the Seller's knowledge, (a) all material commercial leases
affecting the Mortgaged Properties securing the Mortgage Loans are in full
force and effect and (b) there exists no default under any such material
commercial lease either by the lessee thereunder or by the related Borrower
that could give rise to the termination of such lease;
(li) The improvements located on or forming part of each Mortgaged
Property comply with applicable zoning laws and ordinances, or constitute a
legal non-conforming use or structure or, if any such improvement does not so
comply, such non-compliance does not materially and adversely affect the value
of the related Mortgaged Property;
(lii) Each Mortgage Loan constitutes a "qualified mortgage" within the
meaning of Section 860G(a)(3) of the Code (but without regard to the rule in
Treasury Regulationss.1.860G-2(f)(2) that treats a defective obligation as a
qualified mortgage or any substantially similar successor provision) and all
Prepayment Premiums and Yield Maintenance Charges constitute "customary
prepayment penalties" within the meaning of Treasury
Regulation ss.1.860G-1(b)(2);
(liii) With respect to any Mortgage Loan that pursuant to the
mortgage documents can be defeased, the Mortgage Loan cannot be defeased within
two years of the Closing Date, the borrower can pledge only United States
government securities (within the meaning of section 2(a)(16) of the Investment
Company Act of 1940) as the substitute collateral, and the borrower can be
required by the Servicer to establish that the release of the lien is to
facilitate the disposition of the Mortgaged Property or is in connection with
some other customary commercial transaction;
(liv) With respect to each Mortgage Loan for which there are
uncompleted improvements, the only security for such Mortgage Loan
(disregarding pledges of rents, third party guarantees and any personal
liability of the obligor) is the real property, or any other property securing
such Mortgage Loan and at least 90% of the funds received by the borrower under
such Mortgage Loan have been spent or, pursuant to a binding agreement, are
required to be spent to acquire and/or improve the related Mortgaged Property;
(lv) The Mortgage Loan Documents for each Mortgage Loan provide that
such Mortgage Loan is non-recourse to the related parties thereto except for
certain acts including the fraud, willful misconduct or material
misrepresentation by the related Mortgagor and/or its affiliates. Additionally,
the Mortgage Loan Documents for each Mortgage Loan provide that the related
Mortgagor thereunder shall be liable to the related Seller for any losses
incurred by the Seller due to (1) the misapplication or misappropriation of
rents, insurance proceeds or condemnation awards, (2) any act of waste, and (3)
any breach of the environmental covenants contained in the related Mortgage
Loan Documents; and
(lvi) If such Mortgage Loan is a ARD Loan it commenced amortizing on
its initial scheduled Due Date and provides that: (i) its Mortgage Rate will
increase by no more than two percentage points in connection with the passage
of its Anticipated Repayment Date;
A-13
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(ii) its Anticipated Repayment Date is not less than seven years following the
origination of such Mortgage Loan; (iii) no later than the related Anticipated
Repayment Date, if it has not previously done so, the related Borrower is
required to enter into a "lockbox agreement" whereby all revenue from the
related Mortgaged Property shall be deposited directly into a designated
account controlled by the Servicer; and (iv) any cash flow from the related
Mortgaged Property that is applied to amortize such Mortgage Loan following its
Anticipated Repayment Date shall, to the extent such net cash flow is in excess
of the monthly payment payable therefrom, be net of budgeted and discretionary
(servicer approved) capital expenditures.
A-14
<PAGE>
SCHEDULE I TO EXHIBIT A
Property Name/Location
Paine Webber
- ------------
Loan # Name
- ------ ----
151 Winn Dixie Stores, Inc. - Selma
187 Winn Dixie Stores, Inc. - Bunkie
223 Winn Dixie Stores, Inc. - Auburn
305 Rite Aid Corporation - Monticello
310 Rite Aid Corporation - Mount Morris
S-1
<PAGE>
EXHIBIT B
AFFIDAVIT OF LOST NOTE
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
________________________________,___________________, being duly
sworn, deposes and says:
1. that he is an authorized signatory of Paine Webber Real Estate
Securities Inc. ("PWRES");
2. that PWRES 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. (a) that CSFB, 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 CS First Boston Mortgage Capital Corp., under date of
_____________ (the "Note");
4. that the Note is now owned and held by PWRES;
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 PWRES; and
7. upon assignment of the Note by PWRES to Credit Suisse First Boston
Mortgage Securities Corp. (the "Depositor" or the "Purchaser") and subsequent
assignment by the
B-1
<PAGE>
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 ___________ (the "Trustee") (which assignment may, at the
discretion of the Depositor, be made directly by PWRES to the Trustee) PWRES
covenants and agrees (a) promptly to 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 PWRES or the Depositor's failure to
deliver said original Note to the Trustee.
PAINE WEBBER REAL ESTATE SECURITIES
INC.
By:
------------------------
Authorized Signatory
Sworn to before me this
_______ day of June, 1998
B-2
<PAGE>
EXHIBIT C
FORM OF
ASSIGNMENT OF MORTGAGE(S) AND
ASSIGNMENT OF ASSIGNMENT OF LESSOR'S INTERESTS
IN LEASES, RENTS AND PROFITS
KNOW ALL MEN BY THESE PRESENTS:
THAT, as of __________, 199_, Paine Webber Real Estate Securities
Inc., a Delaware limited liability company, whose address is 1285 Avenue of the
Americas, New York, New York 10019 ("ASSIGNOR") in consideration of [ten and
00/100 ($10.00)] dollars and other good and valuable consideration, paid by
State Street Bank and Trust Company, a Massachusetts trust company, as trustee
for Credit Suisse First Boston Mortgage Securities Corp. Commercial Mortgage
Pass-Through Certificates, Series 1998-C1, whose address is Two International
Plaza - 5th Floor, Boston, Massachusetts 02110 ("ASSIGNEE"), receipt of which
is acknowledged by ASSIGNOR, hereby sells, assigns, transfers, sets over and
conveys unto the ASSIGNEE certain mortgage(s) and assignments of leases, rents
and profits and other collateral documents as follows:
See Schedule "A" attached hereto and incorporated herein
by this reference.
TOGETHER with the note(s), debt(s) and claim(s) secured by said
mortgage(s) and the covenants contained in said mortgage(s), together with all
amendments, supplements and modifications thereto and all liens, financing
statements, guaranties and security interests securing the payment of such
notes, including, without limitation, any other documents recorded in the real
property records of the jurisdiction in which the real property covered by the
mortgage(s) is located with respect to such notes, and any other documents,
agreements, instruments or property relating to such loan(s) and all right,
title, interest, claims, demands, causes of action and judgments securing or
relating to such loan(s); TO HAVE AND TO HOLD the same unto the ASSIGNEE and to
the successors, legal representatives and assigns of the ASSIGNEE forever.
THIS ASSIGNMENT is made without recourse or representation or warranty
of any kind or nature, express or implied except as expressly set forth in that
certain Mortgage Loan Purchase Agreement, dated as of June __, 1998 between
ASSIGNOR and Credit Suisse First Boston Mortgage Securities Corp.
C-1
<PAGE>
IN WITNESS WHEREOF, the ASSIGNOR has duly executed this Assignment the
______ day of June 1998.
IN PRESENCE OF:
By:
---------------------
Name:
Title:
C-2
<PAGE>
STATE OF _____________________)
) ss.:
COUNTY OF __________)
On this __________ day of ____________, 199_, before me the
undersigned, a NOTARY PUBLIC OF _________, personally appeared , as _________
of Credit Suisse First Boston Mortgage Capital LLC, a Delaware limited
liability company, who, I am satisfied, was the maker of the foregoing
instrument and who then stated and acknowledged to me that, as such officer and
maker (1) he was authorized to execute the foregoing instrument on behalf of
said limited liability company and (2) he executed said instrument as the act
and deed of said limited liability company.
IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed
my official seal at my office in ____________________________ the day and year
last above written.
Signature _____________________________
Print Name ____________________________
Residing at ___________________________
_____________________________
_____________________________
A NOTARY PUBLIC OF __________
[AFFIX SEAL] My Commission expires on ______________
C-3
<PAGE>
ASSIGNMENT OF MORTGAGE
AND
ASSIGNMENT OF ASSIGNMENT OF LESSOR'S INTERESTS
IN LEASES, RENTS AND PROFITS
PAINE WEBBER REAL ESTATE SECURITIES INC.
TO
STATE STREET BANK AND TRUST COMPANY, AS TRUSTEE
RECORD AND RETURN TO:
C-4
<PAGE>
Exhibit D
Form of Seller's In-House Counsel Opinion
D-1
